RSSB/S3/09/4/A REVIEW OF SPCB SUPPORTED BODIES ...

RSSB/S3/09/4/A

REVIEW OF SPCB SUPPORTED BODIES COMMITTEE

AGENDA

4th Meeting, 2009 (Session 3)

Tuesday 10 March 2009 The Committee will meet at 10.00 am in Committee Room 4. 1. Review of SPCB Supported Bodies: The Committee will take evidence

from—

Albert Tait, Commission Member, and Janet Nixon, Secretary to the Commission, Standards Commission for Scotland; Stuart Allan, Chief Investigating Officer, and David Sillars, Senior Investigating Officer, Ethical Standards in Public Life in Scotland;

and then from—

Tom McCabe MSP, Member of the Scottish Parliamentary Corporate Body, Paul Grice, Clerk and Chief Executive, Ian Leitch, Director of Resources and Governance, and Huw Williams, Head of Officeholder Services and Allowances Policy, Scottish Parliament.

2. Review of SPCB Supported Bodies (in private): The Committee will consider the main themes arising from the evidence.

Claire Menzies Smith Clerk to the Review of SPCB Supported Bodies Committee

Room T2.60 The Scottish Parliament

Edinburgh Tel: 0131 348 5417

Email: [email protected]

mailto:[email protected]

RSSB/S3/09/4/A

The papers for this meeting are as follows— Agenda item 1

Standards Commission for Scotland written evidence

RSSB/S3/09/4/1

Chief Investigating Officer written evidence

RSSB/S3/09/4/2

Scottish Parliamentary Corporate Body written evidence (to follow)

RSSB/S3/09/4/3

Agenda item 2

Note on terms and conditions (to follow)

RSSB/S3/09/4/4 (P)

SPICe briefing

RSSB/S3/09/4/5

Scottish Information Commissioner written submission

RSSB/S3/09/4/6

Waterwatch Scotland written submission

RSSB/S3/09/4/7

Scottish Prisons Complaints Commission written submission

RSSB/S3/09/4/8

Note on Prisons Complaints Process

RSSB/S3/09/4/9

Scottish Public Services Ombudsman written submission (to follow)

RSSB/S3/09/4/10

Mr Frank French written submission

RSSB/S3/09/4/11

RSSB/S3/09/4/1 Agenda item 1


RESPONSE BY THE STANDARDS COMMISSION FOR SCOTLAND TO THE REVIEW OF SPCB SUPPORTED BODIES COMMITTEE Background 1. The Standards Commission for Scotland (“the Commission”) has been invited to provide comments on the SPCB’s proposal that the 6 bodies funded by the SPCB be reduced to 3, one of which would be a Complaints and Standards Body which would include the Commission, the Chief Investigating Officer (“the CIO”), the Scottish Parliamentary Standards Commissioner, the functions currently undertaken by the Scottish Public Services Ombudsman (including those functions currently undertaken by Waterwatch Scotland and the complaints handling functions of the Scottish Prisoner Complaints Commission) and the functions currently undertaken by the Commissioner for Public Appointments in Scotland. 2. The SPCB’s proposal was submitted to the Review of SPCB Supported Bodies Committee (“the Committee”) as part of its Review of bodies supported by the SPCB. As the Commission would not otherwise have fallen under the remit of the Review and as we have specifically been asked to comment on the SPCB’s proposals, we will confine our comments to the SPCB’s proposals and, in particular, to the aspects of the proposals which relate to the Commission and the CIO. 3. The Commission has had the benefit of considering the SPCB’s written evidence dated December 2008 and January 2009 and the oral evidence taken on 09 December 2008. 4. The Commission thanks the Committee for offering us the opportunity to comment on the SPCB’s proposals. Role of the Commission 5. It may be helpful to remind the Committee of the role exercised by the Commission. 6. As is acknowledged within the SPCB’s evidence, the Commission has, in effect, the dual role of promoting high ethical standards among councillors and members of public bodies and, where necessary, enforcing compliance with the Codes of Conduct. 7. The Ethical Standards in Public Life etc. (Scotland) Act 2000 (“the 2000 Act”) established the Standards Commission for Scotland and the post of Chief Investigating Officer. The Commission’s functions as provided for by the 2000 Act are to: • receive reports from the CIO on the outcome of his investigations and, where

the CIO reports his conclusion that a councillor or member of a devolved public body has contravened the Councillors’ or the Members’ Code, determine whether to:

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o direct the CIO to carry out further investigations o hold a Hearing or o take no action

• hold a Hearing to determine whether a councillor or member of a devolved

public body has contravened the relevant Code. • where, following a Hearing, the Panel find that a councillor or member has

breached the relevant Code, to determine, in accordance with the Act, the sanction to be applied - censure, suspension (for up to one year) or disqualification (for up to 5 years).

• issue guidance to Councils and devolved public bodies:

o to assist them in promoting high standards of conduct and o on the Commission’s relationship with them in carrying out its functions

under the 2000 Act. 8. Unlike the other organisations included within the proposed Complaints and Standards Body, the Commission is an adjudicatory body. An appeal against a Hearing Panel’s decision – a finding that a councillor or member has contravened the relevant Code and/or the sanction applied – may be lodged by the respondent only on one or more of the grounds specified in section 22(3) of the 2000 Act. Such an appeal lies, in the first instance, to the sheriff principal. Summary of Commission’s response to the SPCB’s proposals 9. The Commission welcomes and supports proposals that would lead to an improvement in public services or savings to the public purse, provided that the savings would not lead to an unacceptable deterioration of the service. We do, however, have some concerns about how the SPCB’s proposals might operate in practice. Thinking behind the SPCB’s proposals 10. We understand that the SPCB’s proposal is about restructuring the current landscape as part of the wider public reform agenda and again we are happy to welcome and support this approach. We would, however, invite the Committee to consider the following points:

• It is suggested by the SPCB that the composition of the Complaints and Standards Body as proposed would place in one body the majority of complaints currently handled across public sector organisations. However, it is not proposed to include all bodies handling complaints and allegations of misconduct across public sector organisations. For example, the Accounts Commission for Scotland has, following receipt of a report from the Controller of Audit regarding alleged failures, negligence or misconduct on the part of local authority officers or members in relation to accounts, the power to hold a Hearing. Indeed, following such a Hearing, the powers of the Accounts

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Commission in relation to sanctioning members (councillors) are the same as those available to the Commission.

• Whilst it is suggested that “The plethora of bodies dealing with complaints and

standards… makes it confusing for members of the public”1, it is our view that there is limited evidence to support this and, in fact, the experience of the Commission is that members of the public are not confused about where to direct complaints, in particular where those complaints are about the conduct of a councillor or member of a devolved public body.

• Although it is suggested that the Complaint and Standards Body would draw

together organisations with similar functions, it does seem to us that, in particular by including complaints and standards, the Body would include quite disparate functions, ranging from the responsibility for investigating complaints of maladministration on the part of public bodies to monitoring public appointments to ensure that they are made on merit

• In the absence of more detailed and costed proposals regarding the proposed

Complaints and Standards Body, it is difficult to comment in detail but the Commission does have some doubt that the proposals allow significant scope for savings. If, as is suggested, the current functions were maintained, most of the savings would appear to be in relation to shared services, perhaps particularly a shared location, all of which could potentially be achieved without the proposed structural changes.

Reporting Mechanism 11. The SPCB recognises that the Commission and the CIO are Ministerial appointments and that the Government may have a view on these bodies merging with Parliamentary bodies. The Committee is invited to consider the appropriateness or otherwise of merging Parliamentary and Ministerial bodies. The Commission and CIO were created relatively recently and Parliament took the view that the Commission and CIO should report to Ministers, rather than to Parliament. It seems to us that the considerations that applied then apply equally now and we invite the Committee to consider whether the advantages of adopting the SPCB’s proposals now outweigh those considerations. 12. The Committee may be interested to know the reporting mechanisms of some other organisations within the United Kingdom exercising similar remits to the Commission. For example, The Adjudication Panel for Wales reports to the Minister for Social Justice and Local Government and the Adjudication Panel for England reports currently to the Department for Communities and Local Government, but will transfer to the Tribunal Service from April 2009. Proposed structure 13. The SPCB considered various potential structures, including one office holder and a Commission structure, their preferred choice being the Commission structure.

1 Paragraph 21 SPCB additional evidence to Committee dated January ‘09

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14. The Commission supports the view that vesting all the functions in one individual would be too onerous for that individual and agrees that, should the SPCB proposal be adopted, a Commission structure would be the most appropriate. The Standards Commission for Scotland is, of course, already operating within a Commission structure and we would have very real reservations about a proposal that would include our adjudicatory role being undertaken by one individual. 15. It is our outstanding that the SPCB’s proposal is that complaints about an alleged contravention of the relevant Code by a councillor or member of a public body would continue to be investigated by the CIO who would report the outcome to the new Commission. We assume it is proposed that the remit of the new Commission would include the adjudicatory functions currently exercised by the Commission and have some concern that these functions would form a small part of a much wider remit. Whilst the number of Hearings held by the Commission is comparatively low, the importance of these proceedings – to the parties and bodies concerned and to the public who are entitled to have confidence in the standards applied by elected and appointed members and in the robustness and impartiality of the enforcement procedures – should not be underestimated. Further, the skills and expertise required by Commission members who will be required to chair and sit as members of Hearing Panels may be different from those otherwise required by members of the new Commission. 16. In the SPCB’s oral evidence to the Committee taken on 9 December a structure involving a chief or head commissioner, with a commission and individual commissioners with specialist interests, was mentioned. Should such a structure be adopted it would, in our view, be imperative that the decisions of Commission members responsible for adjudicating on ethical standards in relation to councillors and members of public bodies, were not open to interference other than by successful appeal to the sheriff principal. When acting in its adjudicatory capacity, the Commission, and any new Commission charged with these functions, must be, and be seen to be, independent and impartial. 17. The Commission supports the SPCB’s recommendation that the CIO function should be retained within any new body “… with the CIO having, as present, separate functions and the independence to exercise his or her investigatory role without interference from the overarching body (Commission).”2 Section 10(2) of the 2000 Act provides that the Commission shall not direct the CIO as to how that Officer carries out any investigation and we consider this separation of investigation and adjudication processes essential in terms of preserving the impartiality of the adjudicatory body. Conclusion 18. As outlined at paragraph 9, the Commission welcomes and supports proposals that would lead to an improvement in public services or savings to the public purse, provided that the savings would not lead to an unacceptable deterioration of the service. We do, however, invite the Committee to consider the concerns we have outlined in relation to how the SPCB’s proposals might operate in practice.

2 Paragraph 57 SPCB additional evidence to Committee dated January ‘09

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REVIEW OF SPCB SUPPORTED BODIES COMMITTEE RESPONSE BY STUART ALLAN, CHIEF INVESTIGATING OFFICER, ETHICAL STANDARDS IN PUBLIC LIFE IN SCOTLAND TO THE REVIEW OF SPCB SUPPORTED BODIES COMMITTEE Introduction 1.1 I am the Chief Investigating Officer (CIO) having been appointed by

Ministers under section 9 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (the 2000 Act).

1.2 I welcome the opportunity to assist the Committee in its remit. My

submission will focus on the legislative framework for the regulation of the conduct of elected and appointed members, although I will also comment on some of the wider issues being considered by the Committee.

2.0 Functions of the CIO 2.1 The CIO has the statutory function1 of investigating and reporting to

the Standards Commission on cases in which a councillor or member of a devolved public body is alleged to have contravened the Councillors’ Code of Conduct or the Members’ Code of Conduct, as the case may be.

2.2 The CIO and the Commission are separate and independent bodies;

essentially the CIO has the investigative function and the Commission has the adjudicative function (in cases referred by the CIO to the Commission where he has found there has been a breach of the appropriate Code).

2.3 The jurisdiction of the CIO and the Commission covers all councillors

(there are 32 local authorities in Scotland) and over 100 devolved public bodies (including National Bodies, NHS Boards, Regional Transport Partnerships, National Park Authorities, Further Education Colleges and Community Justice Authorities).

2.4 In cases where I have concluded there has been a breach of the

relevant Code of Conduct a formal report2 is submitted to the Standards Commission. The Commission is then responsible for deciding upon these cases and, in appropriate instances, it will hold hearings to make final determinations.

3.0 Summary of workload from 2003 to 2008 3.1 Full details of the workload of the CIO’s office (and the Commission)

can be found in the joint Annual Report for 2007/083.

1 Section 9(2) of the 2000 Act 2 section 14 of the 2000 Act 3 www.standardscommissionscotland.org.uk/documents/StandardsCommissionAnnualReport0708.pdf

Complaints received by CIO

3.2 The number of complaints received over the period from 1 May 2003

(when the Codes of Conduct came into force) to 31 March 2008 has been as follows:

Complaints against councillors 1,086 Complaints against members of

public body 13 Others (outwith jurisdiction) 15 ____ 1,114

Complaints dealt with by CIO

3.3 The outcomes of the complaints have been dealt with as follows:

Conclusion of breach of Code 34 Conclusion of no breach/no further action 830 Outwith Code/jurisdiction/withdrawn 186

____ Total 1,0504

Timescale for dealing with Complaints 3.4 The timescale for dealing with complaints by the CIO in the last

financial year has been as follows:- Completion within 3 months 76% Completion within 6 months 98% Completion within 9 months 100%

Hearings by the Standards Commission 3.5 To date 21 cases have been considered at hearings convened by the

Standards Commission. In all cases the Commission have held there has been a breach of the Code of Conduct.

4.0 Issues to be addressed - Key objectives relating to standards

4.1 From my perspective dealing with standards of conduct, I am of the

view that – in considering any proposals or structural change under the auspices of the public sector reform agenda – the following tests have to be applied:-

4 As at 31 March 2008, 64 complaints were outstanding

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° Enhancing public trust and confidence

It is essential that any changes that are contemplated should improve or enhance the public’s trust and confidence in the standards of conduct of Scotland’s elected members. This is the pre-eminent test.

° Increasing effectiveness

New proposals should achieve – and demonstrably be seen to be achieving - increased effectiveness in the regulation of standards, including in the following areas - improving public access to the complaints or scrutiny

process. - maintaining or improving the standards associated with

scrutiny (particularly in the application of fairness and impartiality, independence and rigour and thoroughness in reporting).

° Improving efficiency and economy

In this connection any new proposals should be able to demonstrate best value in relation to the use of resources (finance, property, information technology and human resources).

4.2 I intend to reflect these tests when I comment on specific proposals. 5.0 The Nature of Complaints 5.1 It is important to draw a clear distinction between complaints that relate

to:-

° services provided by public authorities ° standards of conduct by elected and appointed members.

5.2 Service complaints can relate to a whole range of matters where

members of the public have concerns about the performance of public authorities; the complaints can cover any aspect of the organisation from the duties of a single official to those of the board of a corporate body. In complaints about the standards of conduct of members, these turn on the ability of individual members properly to perform their public duties; at the end of the day sanctions can (in the case of the Ethical Standards Act) lead to disqualification from office.

5.3 In the case of service complaints, it is appropriate to provide

administrative remedies. In the case of complaints about standards it is appropriate to provide judicial remedies.

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6.0 Investigations into standards of conduct 6.1 The responsibility for investigations of the conduct of elected and

appointed members is undertaken by myself as CIO in relation to councillors and members of public bodies and by the Scottish Parliamentary Standards Commissioner (SPSC) in relation to members of the Scottish Parliament.

6.2 In both cases, the investigation procedures are similar and both offices

will undertake the investigations with full regard to fairness, impartiality, rigour and thoroughness. The investigations require to be separate and independent from the authority which ultimately requires to decide if there has been a breach of the relevant Code. In the case of the CIO, this will be the Standards Commission and in the case of the SPSC this will be Standards, Procedures and Public Appointments Committee of the Parliament (who then report with recommendations on any sanctions to the Parliament itself).

6.3 Other public office holders may also receive complaints which may – to

a greater or a lesser extent – touch on the standards of conduct by members. The Controller of Audit has investigative and reporting powers5 similar to my own in respect of matters of financial impropriety and the Accounts Commission have similar adjudicative powers to the Standards Commission to make final determinations in breach cases6. Complaints to the Ombudsman may also embody complaints about the conduct of members. There are protocols between (i) the CIO/Standards Commission and the Controller of Audit/ Accounts Commission and (ii) the CIO/Standards Commission and the Ombudsman respectively and these lay down operational guidelines to ensure that there is no undue duplication in the investigation of complaints. These protocols have worked well and since I became CIO there have been no cases where members of the public have complained about any difficulty either in making a complaint or in being sure that the complaints were been addressed by the proper office. Amalgamating the CIO/SPSC functions

6.4 Following the Crerar Review, the SPCB has proposed that the

investigative functions of the CIO and the Scottish Parliamentary Standards Commissioner be amalgamated into a single office (which for ease of reference I shall call the new standards office). The new office would report to the proposed Complaints Handling and Standards body in respect of complaints concerning councillors and members of public bodies and to the Standards, Procedures and Public Appointments Committee in respect of complaints concerning MSPs.

6.5 I am of the view that, having regard to the similarity of functions, there

would be considerable merit in having both roles brought together and made the responsibility of a new standards office.

5 Section 102 of the Local Government (Scotland) Act 1973 6 Sections 103B to 103F of the 1973 Act

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I think there would be significant benefits with the public having access to a single office set-up when seeking advice about the complaints process relating to members’ conduct. There would also be comprehensive professional and administrative services (currently in the CIO’s office) to support the joint functions of the new office.

I also consider that the amalgamation proposals could be implemented

with an overall improvement in service delivery and with some (albeit modest) overall savings in current expenditure.

Adjudication of complaints against councillors/members of public bodies

6.6 Turning to the adjudication of complaints about councillors/members of

public bodies and MSPs respectively, my understanding is that the latter will continue to be dealt with by the Standards, Procedures and Public Appointments Committee (reporting to the Parliament itself). That leaves open what is the appropriate body to hold hearings for cases involving councillors/members of public bodies.

6.7 It is important to remember that adjudicating on such complaints is part

of what is essentially a judicial process. The CIO, in the first instance, has to report that the findings of fact

amount in law (and applying the civil standard of proof) to a breach of the relevant Code.

The Standards Commission then has to decide if the case for a breach

has been made out in law and, if so, decide the appropriate sanction which can amount to 5 years disqualification from public office. (It should be noted that the Adjudication Panels for England and for Wales have the same adjudicatory functions of the Standards Commission and have been formally designated as tribunals for the purpose of hearings).7

There is a right of appeal against decisions of the Standards

Commission to the Sheriff Principal and to the Court of Session. 6.8 So far as I am aware, the Standards Commission is the only body

referred to in the SPCB submission which is essentially judicial in its nature.

6.9 In considering the proposals by the SPCB for dealing with the

adjudication of complaints by the new Complaints Handling and Standards body, I would have to express reservations as to the extent that there would be public confidence in the perceived ability of such a body (or even a delegated part of it) to undertake its duties fairly and independently. The main or predominant function of the body would be to deal with redress relating to the administrative functions of the public sector. Such is the scope and extent of that role that it is easy to contemplate criticisms being made that such a body could not also act

7 Section 76 of the Local Government Act 2000

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as a fair and independent tribunal for the purposes of article 6 of the Convention on Human Rights; certainly the body’s functions in relation to public institutions could be seen as involving a conflict of interest if it is also being tasked to deal with complaints about the conduct of individual members of these institutions.

6.10 For all these reasons, I consider that the adjudication function in

relation to councillors/members of public bodies should be vested in a separate body dedicated to determining the matters before it on a judicial basis and unencumbered by other functions relating to local authorities and public bodies.

7.0 Tenure of Office-holders 7.1 An area that the Committee is considering is the period of tenure that

should apply to office-holders to ensure functional independence. 7.2 In the case of the CIO, the period of office has generally been of three

years, on a renewable basis. The reasons for dismissal (on grounds relating to capability or conduct) are set out in the letter of appointment. These arrangements are clear and, in my view, are balanced and have worked well in practice.

7.3 I would also take this opportunity of observing that the period of tenure

for posts should be variable and should vary depending on the nature of the post and the importance to be attached to independence in particular cases. For example, where the responsibilities of the post involve holding the Government to account a long period of tenure would be appropriate; with posts where the responsibilities are more administrative, the period could be for a more limited period of years, renewable if performance has been satisfactory.

8.0 Resources 8.1 It is entirely accepted that public office-holders should be accountable

for the level of resources which they draw upon. In the case of the office of the CIO, funding is provided by the Scottish Government. The funding process has not in any way impacted on the functional independence of the office to undertake its statutory responsibilities.

8.2 As far as the proposals affecting the investigation of standards of

conduct are concerned, I think that financial savings could be made but, given the limited current expenditure involved, they would be modest. However, I consider that a proper detailed assessment of the costs as envisaged by the SPCB in a wider context is entirely appropriate.

8.3 I would also observe that structural change should not be seen as

necessary to ensure best value from resources. I think there is scope for office-holders to take the initiative and consider options of sharing resources – such as in property, IT and office support services – to achieve overall financial savings.

3 February 2009

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REVIEW OF SPCB SUPPORTED BODIES COMMITTEE EVIDENCE TO THE REVIEW OF SPCB SUPPORTED BODIES COMMITTEE FROM THE SCOTTISH PARLIAMENTARY CORPORATE BODY As you know the SPCB has been invited to give evidence before your committee on 10 March 2009. I have followed the progress of your inquiry with interest and look forward to having a further opportunity of discussing the Corporate Body’s proposals with the committee next week. As this is the last opportunity for the SPCB to offer its views, it would be extremely helpful if I were to be granted longer than usual to make my opening statement to allow me to fully expand on the approach that the Corporate Body has taken in relation to these important matters. I am aware that the Committee has received a significant amount of evidence and I have read with interest the Official Report of evidence provided to the Committee by some witnesses. While most of it has been constructive, the Corporate Body considers that some needs to be clarified and, in some cases, corrected and as I do not wish to take up the valuable time of the committee to go over this, I would be grateful if the committee would accept this letter as an additional submission to deal with these issues. A number of things have been said about the way we interact with officeholders and various issues of governance and I think it is important the SPCB has the opportunity to address some of these. Much has been made, in particular by the Scottish Information Commissioner and the Scottish Public Services Ombudsman about jurisdiction. The Corporate Body does indeed come under the jurisdiction of the Ombudsman and, as Members I imagine are aware, the jurisdiction of the Information Commissioner also. Members individually of course come under the jurisdiction of the Parliamentary Standards Commissioner. The key question is whether this compromises the Corporate Body’s ability to scrutinise budgets, etc on behalf of the Parliament. The clear evidence is that it has not to date and I can see no reason why it would in future. A good example of this is that since FOI was introduced, the Corporate Body has dealt with 1314 cases – many of course relating to the reimbursement of Members’ expenses - of which 20 were referred to the Commissioner. Not once has any decision taken by the Commissioner in relation to an FOI request, influenced the SPCB in its dealings with the Commissioner. Nor has such a claim been made either by the Commissioner himself or anyone connected with the FOI requests. The Commissioner in his evidence asked if there were to be a disagreement between the SPCB and an officeholder in relation to a budget matter, where that

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officeholder could take his/her concerns. The SPCB, the Finance Committee and the officeholders have in place a Memorandum of Understanding in relation to administrative arrangements to be observed in connection with the annual budgeting process. This provides that

“If the SPCB proposes changes to the budget which in the officeholder’s opinion could affect his or her ability to discharge his or her functions, the officeholder will notify the Finance Committee in writing. The Finance committee is required to consider any such matter and make recommendations for resolution to the Parliament”.

In 2005, under that protocol the Children’s Commissioner appeared before the Finance Committee in support of her budget as the Corporate Body had reservations about whether her work programme and corresponding budget was too ambitions for the following year. We believe this existing, robust system adequately addresses the officeholder’s concerns. It is also worth mentioning that the officeholders’ budget bids are subject to scrutiny by the Finance Committee as part of the Corporate Body’s annual budget submission. The Finance Committee takes this scrutiny very seriously. Indeed, it has been the case that when the Finance Committee considers the Corporate Body’s budget much of the evidence sessions have been around the officeholder budgets. Another concern raised with your Committee has been the lack of opportunity available for officeholders to discuss with Members of the Corporate Body issues around the budgetary process, with all the negotiations in advance of the formal submission being undertaken at official level. This is quite a normal process. As you would expect, SPCB officials in taking part in any discussion or correspondence on these issues are clear about the views of the Corporate Body itself. And we do, as has been acknowledged, give the officeholders the opportunity to meet with us face to face before the budgets are submitted to the Finance Committee. I should say, I do not recall any occasion which an officeholder has asked to meet a Member or Members of the corporate Body and this has been refused. As Members of the Committee might be aware, we operate a portfolio system within the Corporate Body whereby individual Members have a specific interest in various parts of the functions we undertake. We have a portfolio Member specifically covering the support of Officeholders and he has met on a number of occasions with officeholders on an individual basis. In his evidence, the Information Commissioner has suggested that we should not be recruiting or helping to recruit a commissioner, we should not be determining terms and conditions and we should not be directing officeholders as to their office location. The Corporate Body finds these points perplexing. Some means has to be found and Parliament has given the responsibility for setting the terms and conditions of

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appointment to the Corporate Body. The Information Commissioner went on to add that his terms of appointment are two sides of A4 while his staff have a handbook that goes with their contracts. It is surprising that the Commissioner does not recognise the very significant difference between the nature of his position and that of his staff. As I am sure Members will know, his staff are employees with associated employment rights which require by law and good practice, to be set out in writing. Officeholders such as the Commissioner are appointees – they are not employees – so what is set out in writing are the conditions of appointment – no more, no less. The power of direction over office location exists at present only in relation to the Scottish Commission for Human Rights, as determined by Parliament. While some might suggest that this is to ‘control’ officeholders, we believe that it is a useful tool in facilitating joint working and ensuring value for money. The Chair of the Scottish Human Rights Commission was grateful for the Corporate Body’s support in establishing his office which, as the Committee will be aware, is co-located with the Scottish office of the UK Equality and Human Rights Commission in Glasgow thereby securing the benefits of a one door approach for the public and some sharing of facilities for service users. In general terms, it has been put to the Committee by a number of officeholders that the SPCB may have too many things on its shoulders to undertake the scrutiny role of officeholders. With respect, I think that judgement is best made by the SPCB rather than officeholders. The Corporate Body has always had a wide range of demands to balance and its aims to do so in the best interests of the Parliament. In respect of officeholders, we have built up considerable expertise over the years and it is worth noting that, wherever responsibility for scrutiny lies within the Parliament, it will still need to be resourced by the Corporate Body. We do recognise, however, that if there is to be change ahead in the governance of officeholders that this will place new demands on the Parliamentary Service in the short to medium term. I hope it will provide reassurance to the Committee to know that the Chief Executive has been discussing this with us as part of the corporate change programme here in the Parliament. One of the new Assistant Chief Executives has already been given specific responsibility for the support work associated with officeholders and I hope this sends a clear message as to the importance the SPCB places on its responsibilities in this area of work. I hope these comments put some perspective on the evidence you have heard and I look forward to appearing before your Committee next week.

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Ombudsman, Commissioners and Commissions: Promotional, Investigatory and Enforcement Powers

Independent oversight agencies such as ombudsman offices, commissioners and commissions, established to carry out functions such as to monitor standards and handle performance complaints in relation to public bodies, are typically provided with a range of statutory duties and responsibilities together with a variety of powers. These powers most commonly cover the areas of investigation, promotion and enforcement. However, the extent, nature and balance of these powers will vary depending on the role of the agency in question. This paper looks briefly at the investigatory, promotional and enforcement powers of five such Scottish and UK oversight bodies.

Scottish Commission for Human Rights Promotional powers The Scottish Commission for Human Rights (SCHR) has a general mandate to promote all human rights – civil, political, economic, social and cultural and to encourage best practice in relation to human rights. This mandate is contained in section 2 of its establishing legislation – the Scottish Commission for Human Rights Act 2006 asp 16. The Act defines the SCHR’s promotional duties as to “…promote awareness and understanding of, and respect for, those rights.” The intention is that the Commission will identify and advocate best practice within public authorities, monitor law and policy in Scotland, and, where necessary, recommend changes. Investigatory powers The Commission has quite wide powers to conduct inquiries in relation to any matter relevant to its general duty. It can conduct an inquiry into the policies or practices of: (a) a particular Scottish public authority, (b) Scottish public authorities generally, or (c) Scottish public authorities of a particular description

The SCHR may conduct legal inquiries, enter places of detention and intervene in civil legal proceedings (2006 asp 16 section 11(1)). The Commission may also report to the Court of Session any person who intentionally obstructs the Commission or an authorised person acting in the exercise of a power under section 11(1), the Court may then: (a) make such order for enforcement as it sees fit, (b) deal with the matter as if it were a contempt of the Court. Enforcement powers The SCHR is statutorily obliged to lay the report of any inquiry carried out before the Parliament. The report will include the Commission's findings which resulted from the inquiry, and any recommendations the Commission may have in the light of those findings (2006 asp 16 section 12(2)). However, the SCHR has no powers to enforce its recommendations.

Scotland’s Commissioner for Children and Young People Promotional powers A general function of Scotland’s Commissioner for Children and Young People (SCCYP) is to promote and safeguard the rights of children and young people. This is set out in the establishing legislation – the Commissioner for Children and Young People (Scotland) Act 2003 asp 17. In carrying out that general function, the SCCYP has a statutory duty to: (a) promote awareness and understanding of the rights of children and young people; (b) keep under review the law, policy and practice relating to the rights of children and young people with a view to assessing the adequacy and effectiveness of such law, policy and practice; (c) promote best practice by service providers; and (d) promote, commission, undertake and publish research on matters relating to the rights of children and young people. Investigatory powers Under the SCCYP’s establishing Act, the Commissioner may carry out an investigation into whether, by what means and to what extent, a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (2003 asp 17 section 7). In so doing, the Commissioner may require any person: (a) to give evidence on any matter within the terms of reference of an investigation; or

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(b) to produce documents in the custody or control of that person which have a bearing on any such matter (Section 9). According to the SCCYP’s website the job of the Commissioner is to make sure that the promises signed up to in the United Nations Convention on the Rights of the Child are kept. The Commissioner can set up an investigation if she thinks the promises are not being kept. If the Commissioner believes that a public, private or voluntary organisation is not keeping the promises made to children and young people, she can use the powers listed above to require them to attend a public investigation, examine them under oath and force them to produce documents. Enforcement powers The Commissioner must, at the conclusion of any investigation, lay before the Parliament a report of the investigation. The report must contain any recommendations by the Commissioner arising out of the investigation (2003 asp 17 sections 11(1) and (2)). The Commissioner has no powers to enforce its recommendations.

Scottish Public Services Ombudsman (SPSO) Promotional powers There is no duty set out in the establishing act (Scottish Public Services Ombudsman Act 2002 asp 11) which requires the Ombudsman to promote good practice but, in a Guide for MSPs and Parliamentary Staff 2009, the Ombudsman states as a key function the promotion of good administrative practice, in particular good complaint handling by bodies. Investigatory powers Much of the Act establishing the Ombudsman is concerned with the SPSO’s investigative powers, as the Ombudsman’s primary purpose is to look into:

complaints where a member of the public feels they have suffered injustice or hardship as a result of maladministration or service failure. We are the 'last resort', charged with handling complaints after the complainant has exhausted the formal complaints procedure of the body concerned.

SPSO 2009 p. 2 Enforcement powers After conducting an investigation, the Ombudsman must, if the investigation is pursuant to a complaint, send a report of the investigation to the complainants and to any bodies or people complained about, and to the Scottish Ministers, and must also lay a copy of the report before the Parliament. In addition, the Ombudsman must lay before the Parliament an annual report on the exercise of the Ombudsman’s functions. The report may include any general recommendations which the Ombudsman may have arising from the exercise of those functions.

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The Ombudsman has no powers of enforcement, but aims to provide justice for the individual, and also to share the learning from their work in order to improve the delivery of public services in Scotland.

Scottish Information Commissioner Promotional powers The legislation establishing the Scottish Information Commissioner (Freedom of Information (Scotland) Act 2002 asp 13) gives the Commissioner a duty to promote observance by Scottish public authorities of the provisions of the act and any code of practices issued. The Commissioner also has a duty to promote good FOI practice among Scottish public authorities. Investigatory powers The Scottish Information Commissioner has wide powers of investigation in carrying out his statutory functions. Anyone who believes they have not received information to which they are entitled can appeal to the Commissioner. At the conclusion of an investigation (if settlement is not reached) the Commissioner will issue a decision notice which sets out his conclusions. The Commissioner can also investigate a public authority if he believes that it may be failing to comply with the terms of the legislation or the Codes of Practice issued under the legislation. Enforcement powers The decisions of the Scottish Information Commissioner, as a quasi judicial body, are legally enforceable and he may require an authority to give out information that it has previously withheld, or take other action. He might, of course, uphold the decision of an authority to withhold information, but in doing so he will have rigorously investigated that decision to ensure it is legal.

Equality and Human Rights Commission [UK] Promotional powers The Equality and Human Rights Commission’s website states that the Commission provides help and advice on equal opportunities policy and practice to many organisations and companies, large and small; and liaises with government departments and representative organisations from all sectors. They can work with the organisation, businesses or sectors to develop organisational practices that will improve equality and human rights. Promoting an understanding of, and encouraging good practice in, the various aspects of the areas covered by the Commission are duties set out in the legislation which established the Commission (Equality Act 2006 c.3 sections 8-10).

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Investigatory powers Part of the Commission’s remit is to enforce equality legislation on age, disability, gender, gender reassignment, race, religion or belief, and sexual orientation and encourage compliance with the Human Rights Act. The commission has significant powers to enforce the equalities duties of organisations and authorities, including, ultimately, launching official inquiries and formal investigations. Again the investigative powers are included in the establishing legislation. Enforcement powers The Equality and Human Rights Commission has extensive legal powers and a dedicated directorate of expert lawyers who are specialists in equality law. This means that the commission is equipped to take legal action on behalf of individuals, especially where there are strategic opportunities to push the boundaries of the law. Where there are chances to create legal precedents or to clarify and improve the law, the commission will seek to do so.

Sources Commissioner for Children and Young People (Scotland) Act 2003 asp 17 Equality Act 2006 c.3 Equality and Human Rights: Policy: Using our legal powers [Online] available at: http://www.equalityhumanrights.com/en/policyresearch/usinglegalpowers/pages/default.aspx [Accessed 23 February 2009] Freedom of Information (Scotland) Act 2002 asp 13 Scottish Commission for Human Rights Act 2006 asp 16 Scotland’s Commissioner for Children and Young People: About SCCYP [Online] available at: http://www.sccyp.org.uk/webpages/about_sccyp.php [Accessed 23 February 2009] Scottish Inforamtion Commissioner [Online] available at: http://www.itspublicknowledge.info/home/ScottishInformationCommissioner.asp [Accessed 23 February 2009] Scottish Information Commissioner (2004) Enforcing Freedom of Information: the Scottish Information Commissioner’s powers [Online] available at: http://www.itspublicknowledge.info/nmsruntime/saveasdialog.asp?lID=1903&sID=11 [Accessed 23 February 2009] Scottish Public Services Ombudsman Act 2002 asp 11

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http://www.equalityhumanrights.com/en/policyresearch/usinglegalpowers/pages/default.aspx

http://www.equalityhumanrights.com/en/policyresearch/usinglegalpowers/pages/default.aspx

http://www.sccyp.org.uk/webpages/about_sccyp.php

http://www.itspublicknowledge.info/home/ScottishInformationCommissioner.asp

http://www.itspublicknowledge.info/home/ScottishInformationCommissioner.asp

http://www.itspublicknowledge.info/nmsruntime/saveasdialog.asp?lID=1903&sID=11

http://www.itspublicknowledge.info/nmsruntime/saveasdialog.asp?lID=1903&sID=11

SPSO (2009) Guide for MSPs and Parliamentary Staff 2009 [Online] available at: http://www.spso.org.uk/webfm_send/2100 [Accessed 23 February 2009] Francesca McGrath Senior Research Specialist SPICe 24 February 2009 Note: Committee briefing papers are provided by SPICe for the use of Scottish Parliament committees and clerking staff. They provide focused information or respond to specific questions or areas of interest to committees and are not intended to offer comprehensive coverage of a subject area.

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http://www.spso.org.uk/webfm_send/2100


REVIEW OF SPCB SUPPORTED BODIES COMMITTEE RESPONSE BY SCOTTISH INFORMATION COMMISSIONER TO THE REVIEW OF SPCB SUPPORTED BODIES COMMITTEE Thank you for your letter of 11 February seeking further detail on the oral evidence I gave earlier this month. I am of course pleased to assist the Committee and I have set out my response in the appended papers. In Appendix I have grouped together the issues relating to oversight and scrutiny including the role of the SPCB, resourcing and budgeting, and have commented separately on matters relating to terms and conditions. At the end of my oral evidence session you asked me to submit in writing my proposals on legal status, and these are also provided. In Appendix II, for the Committee’s information only, I comment on the difficulties which arise with the interface between FOISA and the EIRs, and suggest a possible way forward. I plan to raise this matter with Ministers, mindful of this Committee’s work and timetable. I hope the Committee finds this supplementary information helpful.

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Appendix I

Scottish Information Commissioner Supplementary evidence to the

Review of SPCB Supported Bodies Committee

Oversight and Scrutiny – the role of the SPCB 1. I have been asked to describe what I see as the deficits in the current

arrangements and offer alternative approaches which I recommend should be considered by the Committee.

2. I have arranged this section in two parts:

• Issues - I set out aspects of the current arrangements which, in my view, would benefit from being reviewed and refined.

• Options – I outline suggested revisions to the arrangements to address these issues

Issues Balancing Scrutiny with Independence 3. The key issue is ensuring the correct balance is struck between scrutiny and

independence. I fully understand and accept the need for scrutiny of how public money is being utilised and managed.

4. The Freedom of Information (Scotland) Act 2002 (FOISA) makes clear the

expectation that I should report to Parliament through the requirement to lay my Audited Accounts and Annual Report before it.

5. However the Act also provides that except for the function of preparing accounts

the Commissioner ‘is not subject to the direction or control of the Parliamentary corporation, of any member of the Scottish Executive or of the Parliament.’ This means the arrangements which exist elsewhere, such as those between a sponsoring government department and an NDPB, cannot be readily applied.

Changing role of the SPCB 6. The nature of the SPCB’s engagement has changed over time, moving from

being a mechanism through which my budget submission is administered to an increasing level of scrutiny, with the encouragement of the Finance Committee.

7. My concern is that, as the SPCB’s role advances from administration, through

scrutiny and on to budget approval, this has the capacity for de facto direction and control, which must be guarded against. In any case this increasingly influential role needs to be matched with enhanced arrangements for engagement, oversight and mechanisms for dispute resolution.

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Strategic Oversight & Engagement 8. Currently the scrutiny focus is on reviewing budget submissions on an annual

basis. These are scrutinised with particular reference to the amount of increase sought over the current year’s approved budget. If the increase requested is in excess of the inflationary target intimated to me by SPCB officials I may be requested to consider identifying savings. I may be invited to a meeting of the SPCB to discuss my budget proposal and to elaborate on specific aspects of it.

9. The interaction with the SPCB does not readily facilitate discussion at a strategic

level. I principally deal with the officials and have no explicit or ready access to the parliamentarians whose primary business, in any event, is to consider matters regarding the management and function of the Parliament itself.

10. Although my strategic plan is provided, for information, to the SPCB there is no

meaningful engagement regarding the objectives set within it, nor their resource and budgetary implications. I recognise that this may well reflect the SPCB’s proper caution against intruding on my independence.

11. However, as a result the annual budget review is a scrutiny process which lacks

sufficient context and provides little opportunity to anticipate, or appreciate the reasons for, any significant variations in costs. Therefore, if the SPCB were to decide not to approve my budget submission, there are potentially weaknesses in its basis for doing so.

12. As an example, there is not an adequate forum in which to explore with the SPCB

the impact on future budgets of the pay scales and settlements negotiated by the SPCB for its staff. By statute, my staff can only be appointed on terms and conditions approved by the SPCB. As the approved model for my staff’s terms and conditions are those of the SPCB the settlement directly affects my salary costs which represent almost 80% of my budget. The effect of the pay settlement is typically to add around 7% to my salary costs. As most of the remaining 20% or so of my budget is committed to standing costs, in real terms the only way I can contain my budget within a formula of ‘previous year plus inflation’ is to reduce my staffing levels year on year. An annual budget within an inflationary cap also does not allow for capital replacement or other non-recurring one – off costs. As an approach to forward planning this is unsustainable and will inevitably adversely affect my ability to deliver upon my strategic objectives and meet my statutory functions. It is this issue that I referred to in my oral evidence in a response to a question from Joe Fitzpatrick (official report column 100).

Dispute Resolution 13. There are two main types of dispute which I can foresee, neither of which are

clearly enough dealt with currently and could become more pronounced. The first is where there is a difference of view as to the way in which I determine my statutory role should be implemented, which in turn has resource implications. The second would relate to issues affecting me as an officeholder, which could broadly be described as terms and conditions.

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14. In my oral evidence (official report column 96), I suggested that it was not clear to me what would happen if I was in dispute with the SPCB about the necessary resourcing of my office to meet my statutory purpose (or indeed on other matters). I went on to describe the hypothetical scenario whereby it is maintained by the SPCB that my role is to take decisions on appeal and that I should be funded on that basis, whilst I progressively determine the emphasis of my statutory role as also being to improve the practice of public authorities and the awareness of the public of their rights as set out in legislation. That function would need to be resourced as much as the hard investigative role and that would have a budgetary implication. As things stand the decision on the future implementation of freedom of information enforcement would be determined primarily in the context of annual budgetary approval not in the context of a review of policy implementation.

15. Currently, should such a scenario arise, it may be possible for me to make my

case to the Finance Committee, as described in paragraph 69 of the SPCB’s January written submission. It is not clear to me if the SPCB is given budgetary approval that this avenue will be available in the future. Even if it is, it still does not address the concern that neither the SPCB nor the Finance Committee are established to undertake an oversight role of the implementation of the legislation and there does not currently exist any other committee whose terms of reference include responsibility for that function.

16. Non-budget/finance based disputes between an officeholder and the SPCB may

also arise. An example is the long-running concerns regarding the legal status of officeholders. Where there are discussions on such matters, they are held with the SPCB officials. It is unclear to me how I could progress a matter should I be concerned with the approach being taken by the officials, and how this could be brought to a fair conclusion. The same could be true regarding any changes to terms and conditions, level of remuneration etc. This highlights the absence of a clear and pre-determined route such that where there is a difference of view a fair resolution can be secured.

Conflict of Interest 17. In addition to the issues I describe above, as I have jurisdiction over the SPCB

there is the potential for there to be a conflict of interest, real or perceived, should it decline to give approval to the resources I consider necessary to fulfil my statutory responsibilities; enforcement in particular.

Summary 18. In summary, therefore, I believe there is an opportunity to make provision for the

following improvements to the current arrangements: a. Complementing the financial scrutiny being undertaken by the SPCB

with enhanced Parliamentary engagement on strategic issues. b. providing clear processes whereby budgetary scrutiny and approval

takes place wthin the context of strategic resource planning

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c. provision for dispute resolution, where there does not currently exist a procedure through which issues can be properly and fully discussed and resolved.

Potential approach Parliamentary Engagement19. I would welcome formal engagement with a Parliamentary committee which

would consider issues raised in my Annual or special reports. The same Committee could also consider my strategic plan if the SPCB’s proposal to have these laid before Parliament are taken forward.

20. This could be done by an existing Committee such as Justice. However there

may be merit in establishing a Committee for the purpose of considering the annual reports of each Commissioner or Ombudsman reporting to Parliament and engaging with the matters raised by them.

21. The Committee would provide a forum for informed and meaningful dialogue

regarding an officeholder’s current and proposed approach to the fulfilment of their role.

22. The benefit of this approach is that scrutiny will take place in public and views

expressed will be in the official record; it will focus on strategic matters of implementation and the Committee can also address or refer to another Committee any specific issues of concern which officeholders raise in their annual or special reports.

The role of the SPCB 23. The role of the SPCB would be to scrutinise the officeholders’ budget

submissions in the context of the strategic plan and supporting resourcing assumptions. The SPCB would have the benefit of the Parliamentary Committee’s consideration of the Annual Report (and strategic plan if appropriate).

24. The key need is to achieve engagement at a strategic level with the MSPs of the

SPCB with the benefit of enhancing understanding of strategic objectives, particularly in the context of budget setting. The role of the MSP from the SPCB charged with liaising with officeholders should be made more explicit and that nominated MSP should meet with the officeholder and members of his staff as well as staff from the SPCB to engage on resource implications prior to the annual budget submission.

25. It is important to recognise the need for a proportionate approach in the scrutiny

role. For example, my budget is £1.5m and I have just 24 staff. As a senior public official and accountable officer, it is appropriate for both the oversight and scrutiny roles to be performed at a high level, leaving responsibility for the apportionment to individual budget lines with me. The SPCB should satisfy itself

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that the budget proposal is aligned with the strategic and accompanying indicative budget plans.

26. Where there are material variations from the strategic plan and indicative

resource needs I would be expected to set out the reasons for these in my submission. The SPCB would present the officeholders’ budgets, with comments, to the Finance Committee within the overall Parliamentary submission, as is the current practice.

Dispute Resolution 27. Currently, if the SPCB proposes changes to my budget which, in my opinion,

could affect my ability to discharge my functions, I would notify the Finance Committee by writing to its Convenor. It is essential this arrangement is retained, though it should be used only as a last resort.

28. With regard to non-budget/finance based disputes, I would recommend that a

protocol is established through which such issues could be discussed and a resolution sought at a meeting between the officeholder, the Parliament’s Chief Executive and the Presiding Officer. The Presiding Officer may determine that external resources be called upon.

Resource Implications 29. In my oral evidence (official report column 95) I acknowledged that, if the deficits

in the current arrangements are to be properly addressed, there are resourcing implications for the Parliament. The SPCB has shouldered the burden of providing support to officeholders; however this was not a responsibility which the SPCB has taken on by design. The need to improve current arrangements and take on any additional functions arising from this review suggests that the SPCB may require additional resources

30. A Parliamentary Committee, supported by a Clerk, would clearly entail an

additional call upon Parliament’s resources. If the task is taken on by an existing Committee then the issue becomes more a matter of time resource.

31. By establishing a Parliamentary Committee and refining the SPCB’s role the

deficits with the current arrangements identified above would be addressed as follows:

a. budget scrutiny would be balanced by enhanced arrangements for engagement on issues

b. the Committee would facilitate discussion at a strategic and policy development level, ensuring the budget review is considered in context

c. the Committee would provide a public forum through which issues regarding strategic matters of implementation of the legislation could be discussed

d. a protocol enabling a meeting to be called between the officeholder, the Parliament’s Chief Executive and the Presiding Officer, through which disputes with the SPCB regarding non-budget/finance based

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issues which affect officeholders (which could broadly be described as terms and conditions) would be discussed and a resolution sought.

Terms and Conditions 32. I have again adopted a two stage approach in which I set out the issues with the

current arrangements and then suggest possible solutions

Issues Appointee v. Employee 33. As an appointee I do not have any employment rights, which is all the more

reason that there should be a fuller exposition of terms and conditions than is currently provided.

34. There is not currently an explicit structure in place allowing officeholders to raise

any issues regarding the terms and conditions which affect them. Nor are there arrangements in place through which planned reviews of terms and conditions are performed including engagement with officeholders.

Removal from Office35. There is an absence of a formal, structured dispute resolution system,

comparable to the statutory disciplinary and grievance procedures applied in employment law. In the case of MSPs, where a complaint is made that the Code of Conduct for MSPs has been broken, the Parliamentary Standards Commissioner exists to conduct an independent investigation. No comparable mechanisms are in place for officeholders.

Remuneration 36. Whereas my staff, whose terms and conditions are modelled on those of the

Parliament, has benefited from formally negotiated pay reviews, my salary is not subject to the same approach.

37. The consequence is that the differential between my salary and that of my senior

staff has been significantly eroded since commencement of my appointment. 38. I also note that the salaries for the recently advertised replacement

Commissioner and Ombudsman are lower than those awarded to the current incumbents; however I am not aware of the basis such a reduction has been arrived at.

Options Appointee v. Employee39. The current sparse terms and conditions of appointment should be expanded to

set them out in fuller detail, more akin to the handbook given to employees.

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Removal from Office 40. The current requirement under FOISA to require two thirds of Members of the

Parliament to vote for my removal from office should be retained. 41. A structure should be established through which any concerns regarding an

officeholder’s performance could be properly discussed and addressed. Remuneration 42. Audit Scotland1 recommended the establishment of a Remuneration Committee

and I recommend that such a committee, with a remit encompassing the full range of terms and conditions generally, be established.

43. Membership could include members of the Oversight Committee and SPCB, and

I would envisage members would be supported by independent experts as appropriate.

Legal Status

Issues 44. For ease of reference I represent here the summary of the issues I identified in

my original written submission to the Committee (paragraphs 17 to 20):

17. I am pleased that the SPCB wishes to use this opportunity to resolve the issues regarding legal status of the Commissioner. However I am not convinced this matter can be fully resolved in the way suggested by the SPCB in its submission to the Committee. 18. My legal advice, which was taken at the SPCB’s suggestion and has been shared with it, is that the Scottish Information Commissioner is the individual who holds that post and has no legal identity separate from that individual. The SPCB proposal to indemnify the individual holding the post against claims arising out of the discharge of the office-holder’s duties is welcome so far as it goes. 19. However there are further complications, which are likely to become apparent when a Commissioner demits office, especially should this occur unexpectedly or unwillingly. For example, as there is no distinct legal entity, my staff are employed by me as an individual and, should I leave office suddenly, they would have no employer. It may be made a contractual obligation upon any subsequent Commissioner to become the employer of existing staff, and this same obligation may have to be placed upon any interim Commissioner (who could be an existing member of staff). This

1 Audit Scotland Report – SPCB – Ombudsman/Commissioners Shared Services (April 2006)

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situation may also require the application of TUPE regulations transferring the employment of staff members to an interim Commissioner and then repeating the process when a permanent Commissioner is appointed – and even this process is not assured. Clearly, this position is cumbersome and unsatisfactory, and could be stressful for all concerned. 20. Contracts, leases etc are also signed in my name, and cannot be in the name of the Scottish Information Commissioner as a distinct and separate entity. Liabilities and charges arising from these could be indemnified. However on leaving office there would still be the necessity to secure, for example, the transfer of the lease to a new Commissioner (and any interim Commissioner) assuming the landlord was willing to do so. Furthermore I am advised that in the event of the death of a Commissioner whilst in post, the lease for an office would form part of their estate (along with the liabilities attached to it).

45. Subsequently the SPCB has written to the relevant officeholders in this regard,

and I understand the Committee has been provided with a copy of its letter of 15 January 2009.

46. The SPCB has clearly given the matter some consideration. However, in the

context of the advice I and other officeholders have received I remain of the view that the SPCB’s response does not adequately address the issues, assuming the status quo is retained.

Legal Personality 47. The central question is whether the individual who holds a post has a legal

identity separate from that individual. The legal advice I and other officeholders have obtained is of the view that there is no separate legal identity. The SPCB suggests that, in accordance with the general presumption of statutory interpretation, it would be cautious about accepting the proposition that the offices have no legal personality whatsoever. I am concerned that the SPCB’s response to this central issue relies upon presumption and caution; a definitive assessment requires to be established to put the matter beyond doubt.

Employment Issues 48. With regard to employment issues the SPCB advises it may consider requiring

new officeholders to be guided by the Cabinet Office Statement of Practice on Staff Transfers in the Public Sector. I consider it unsatisfactory that my staff should require to be subject to TUPE on each occasion a new Commissioner is appointed. This does not appear to be a sensible arrangement. Furthermore, it assumes an orderly transition between Commissioners will occur. However, what would happen should the appointment of a temporary Commissioner be required perhaps because I have died whilst in office, or demit office unexpectedly, for example? Under the suggested arrangements it would appear my staff would require to be subject to TUPE on repeated occasions. Furthermore, the need to refer to such a Statement of Practice serves simply to

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underscore the uncertainty which exists regarding the officeholders’ legal status, notwithstanding the interpretation of the law suggested by the SPCB.

Leases and contracts 49. The proposed incorporation of assignation clauses in leases and contracts must

assume the landlords and suppliers involved would be willing participants in such arrangements. It also assumes there is a party to assign leases and contracts to; what would happen if I were to die in office? My understanding is, for example, that the lease for my office would form part of my estate. This is clearly not what Parliament intended when the legislation was established.

Solution – establishing a body corporate 50. Legislative change is required to put the matter beyond doubt and the

Committee’s work presents an opportunity for changes to be made. 51. I have suggested to the SPCB that a body corporate, of which the Scottish

Information Commissioner is the sole member and using the same principle which underpins the relationship between the Parliament and the SPCB, would appear to offer the way forward and I am pleased to see this is recognised as a possible solution in preference to individual officeholders.

52. As I understand it, a body corporate (e.g. Scottish Information Commissioner

Corporate Body) would be the employer and contracting body. It would remain as the constant legal entity, regardless of changes in Commissioner, temporary or otherwise.

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Appendix II Scottish Information Commissioner Supplementary evidence to the Review of SPCB Supported Bodies Committee

FOISA & EIRs

1. As I explained in evidence given before the Committee, the interface between the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs) does not work well at present. I am grateful to the Committee for giving me an opportunity to explain why the interface between the two regimes does not work well and would also like to make a suggestion as to how this problem can be resolved.

2. Both FOISA and the EIRs came into force on 1 January 2005. While FOISA

is an Act of the Scottish Parliament, the EIRs derive from European Directive 2003/4/EC on public access to environmental information. I understand that, when the two pieces of legislation were being drafted, it was intended that they should be mutually exclusive, so that requests for environmental information would be dealt with under the EIRs and requests for all other information would be dealt with under FOISA. However, given the way in which the legislation has been drafted, requests for environmental information require to be dealt with under both FOISA and the EIRs. This causes confusion for public authorities responding to requests for environmental information and, perhaps more importantly, for people who make requests for environmental information. Additionally, it delays the investigation of cases by my Office, because applications have to be considered under both sets of legislation (this can involve deciding whether large numbers of documents fall under the exemptions in FOISA and also whether the documents fall under the differently worded exceptions in the EIRs).

3. The problem has arisen because of the way in which “information” is defined

in the two regimes. The EIRs give the public a right to access environmental information; a very detailed definition of “environmental information” is set out in regulation 2(1) of the EIRs. As with FOISA, the right to access environmental information is subject to a number of limitations and exceptions, for example, for environmental information whose disclosure would, or would be likely to, prejudice substantially national security. As with FOISA, the majority of the exceptions in the EIRs are subject to the “public interest test”. This basically means that even if an exception is found to apply, the environmental information should still be disclosed unless the public interest in withholding the information is greater than the public interest in disclosing it.

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4. While the EIRs are limited to environmental information, FOISA gives the public a right to access any recorded information held by a public authority (subject to a number of limitations - e.g. on cost grounds - and exemptions). This is because section 73 of FOISA simply defines “information” as “information recorded in any form”. As a result, a public authority receiving a request for environmental information must deal with the request under both FOISA and the EIRs. If both regimes were identical, then perhaps this would not cause too many problems. However, while the two regimes are similar in some respects, they also have a number of major differences, such as provisions dealing with the format of the request, the timescales allowed for dealing with the request and the fees which can be charged for dealing with the information request. The exceptions in the EIRs are also different from the exemptions in FOISA and examples can be found of cases where information which does not require to be disclosed under FOISA must be disclosed under the EIRs.

5. It would appear that when FOISA was being drafted, Parliament was aware

that such a problem could arise: section 39(2) of FOISA contains an exemption for information which a public authority is obliged to make available in line with regulations made under section 62 of FOISA, or which a public authority would be obliged to make available under those regulations but for any exemption contained in the regulations. Section 62 of FOISA refers to the Aarhus Convention, i.e. the Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters signed at Aarhus in 1998, which is the precursor to Directive 2003/4/EC, and so it can be assumed that the intention here was to exempt from FOISA environmental information for which there was to be a right of access under the EIRs. (I consider that the reference to the Aarhus Convention in section 62 of FOISA would more properly have been a reference to Directive 2003/4/EC, given that the EIRs themselves make it clear that they are designed to implement the Directive and not the Aarhus Convention.)

6. However, the exemption in section 39(2) of FOISA does not actually help with

the interface between the two regimes. Even if a public authority decides to rely on the exemption in section 39(2) of FOISA in order to allow it to consider a request for environmental information under the EIRs alone, the authority must still comply with other technical requirements of FOISA, such as issuing the requester with a formal notice under section 16 of FOISA to advise him/her that it is withholding the environmental information under one of the exemptions in FOISA and why. At the same time, the public authority must give the requester the right to ask the public authority to review its decision on the use of the exemption in section 39(2) of FOISA. It may well be that the public authority has decided to disclose the environmental information to the requestor under the EIRs, but a formal notice under FOISA will still be required if the public authority is not to fall foul of the requirements of FOISA. This is just one example of how the interface between the two regimes currently works in practice.

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7. A further problem arises from the fact that the exemption in section 39(2) of

FOISA is subject to the public interest test set out in section 2(1)(b) of FOISA. This means that, even if the exemption applies (because the information request falls to be dealt with under the EIRs), the public authority is still under a duty to disclose the information under FOISA unless the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

8. I have considered whether the interface between the two regimes could be

tidied up simply by making the exemption in section 39(2) an absolute exemption, i.e. one which is not subject to the public interest test. However, I do not consider that that would be sufficient. While this would have the effect of making all environmental information absolutely exempt under FOISA, the public authority would still have to comply with other technical aspects of FOISA, such as issuing a formal refusal notice under section 16 of FOISA (see above).

9. I would therefore suggest that a better way to solve the problem would be to

amend the definition of “information” in section 73 of FOISA to exclude environmental information as defined in regulation 2(1) of the EIRs. This would then have the effect of ensuring that all requests for environmental information were dealt with under the EIRs and that all requests for non-environmental information were dealt with under FOISA. I appreciate that this will require an amendment to primary legislation, but consider that this would be the appropriate way forward.

10. If the Committee would like to suggest other ways of dealing with this issue,

then I would be happy to discuss their suggestions.”

13

WATERWATCH SCOTLAND ORGANOGRAM

Chief Officer

Head of Customer Support

Customer Support Officer

Administration Officer 1 (Personal Asst) Information

Officer Vacancy Customer Support Officer

Administration Officer 2 (Executive Asst)

Head of Strategic

Development

\\edn-app-001\users\PUBLIC\!Work Pending\RSSB Papers\RSSB-S3-09-4-7 Waterwatch Organogram.doc

Response to: Fit for Purpose Complaints System Action Group Report to Ministers (“FCSAG Report”), published July 2008

Waterwatch Scotland (WWS) is the national complaints handling authority for all domestic and non-domestic water customers and consumer representative body for the water industry in Scotland.

Post-introduction of competition to water and sewerage services in Scotland, WWS

is unique in a Scottish context in that it is the statutory second-tier complaints handling body (often referred to as an “ombudsman”) for a Scotland-wide industry sector, spanning both a publicly owned corporation, i.e. Scottish Water, but also private sector organisations, e.g. Business Stream and all other new private-sector entrants.

WWS is not publicly funded, i.e. through general taxation or otherwise – WWS is funded via a levy, on the industry.

WWS went live with its new statutory role, as from 1 April 2006. In that period WWS

has, along with the other industry stakeholders, played a significant role in improving customer service, systems, processes and service provider performance within the water industry in Scotland, e.g. 65% reduction in second-tier complaints.

WWS is a robust, independent, evidence-based expert on the water industry.

WWS does not just engage with water and sewerage service providers to improve

complaints-handling processes within the industry, but also engages to prevent and mitigate the actual causes of complaints.

Unlike other ombudsmen, e.g. Scottish Public Services Ombudsman (SPSO), WWS

is not limited to dealing with individual complaints solely. WWS is also not limited to specific headings of complaint, e.g. maladministration. This allows WWS to deal with complaints/customer contacts, not only on an individual basis but systemically. Many of the successes to date have been as a result of WWS ability to raise and pursue such systemic issues proactively, to the benefit of customers and the greater industry. This approach also allows WWS to identify potential issues “bubbling under the surface” and remedy them within a short timescale.

WWS is empowered to make statutory recommendations to a wide range of water

industry stakeholders, including Scottish Ministers, the Scottish Government, Scottish Environment Protection Agency (SEPA), Drinking Water Quality Regulator (DWQR) and the Water Industry Commission for Scotland (WICS).

WWS’s Corporate Office is based in Alloa as a result of the Scottish Government's

Small Business Unit Relocation policy. A small, professional team of staff support the organisational role. Many of those employed are local to the area and there is a great local pride that a national complaint handling body is located within Alloa.

Corporate Office, Forrester Lodge, Inglewood, Alloa, FK10 2HU Loc: 0845 850 3344 tel: 01259 725335 fax: 01259 214218

Page 2 of 14

SUMMARY

WWS welcomed the Crerar Review and its findings. WWS considers that it complies with the various findings in the Crerar Review.

WWS was disappointed that it was not afforded the opportunity to contribute to the

FCSAG Report – which contains various material erroneous assumptions in respect of WWS and its role.

The FCSAG Report fails to take cognisance of the fact that WWS:

I) Falls outwith the definition of a public complaints body for the purposes of the

Report; II) Is not a publicly funded body but industry funded; III) Is the 2nd-tier complaints-handling body (ombudsman) for a publicly owned

body (Scottish Water) and other private sector water and sewerage service companies, all operating within a Scotland-wide industry sector open to competition;

IV) Is already operating standardised (SPSO approved) systems and processes; V) Has already adopted complaints-handling best practice, as per SPSO and

BIOA; VI) Even as shown by the FCSAG Report, complaints within the water industry are

already benefitting from amongst the simplest of landscapes and minimum of process steps of any sector;

VII) Unlike SPSO, current WWS powers allow both individual and systemic complaints to be dealt with proactively;

VIII) WWS are not limited to narrow complaint remits, e.g. maladministration; IX) Transfer of WWS complaints-handling to SPSO, without a greater increase in

SPSO powers than advocated by FCSAG would be seen as not in the customers interests;

X) WWS uses its credible, authoritative evidence to mitigate future complaints, if need be by own-initiative investigations.

WWS has performed well in its current joint statutory 2nd-tier complaints-handling

(ombudsman) and customer representative roles.

Complainer satisfaction with WWS (even where WWS did not find in their favour) is 96% (2006-07) and WWS turnaround times are for the sector fast. This compares to 62% general dissatisfaction with SPSO and excessive time taken to deal with complaints being the highest heading of SPSO complainer dissatisfaction.

The benefits of WWS current role has to be seen in the context of the benefits in how

it operates contributing not insignificantly to the once much-maligned water industry in Scotland making serious marked improvements for which it is being praised.

Page 3 of 14

THE CRERAR REVIEW – WWS COMPLIANCE

WWS welcomed the Crerar Review* and its findings - all comment with regard to

general principles being self-evident and beyond dispute. In being a recently established body, WWS considered that it was compliant with the various findings in the Crerar Review (“Crerar-compliant”).

The Crerar Review described the most significant change to present (general)

complaints–handling systems, as being the recommendation of a move toward a standardised system (standard methodology and process) across all sectors.

WWS was set up by the Scottish Government, going live with its new functions as

from 1 April 2006. It did so with the benefit of a Government approved single tender action, which saw WWS procuring the Complaints Handling and Administration System (CHAS) operated by and licensed from SPSO. As such WWS and therefore complaints from within the water sector are already subject to a standardised (SPSO approved) system.

In addition to operating the SPSO’s CHAS system, WWS also adopted best

complaints-handling practice and principles, as evidenced by both SPSO and British & Irish Ombudsman Association (BIOA) guidance.

WWS (by not being limited to certain headings of complaints) simplified the

complaints-handling landscape within the water sector, by not requiring complainants to complain to differing bodies within the sector in respect of differing headings of complaint e.g. as with care complaints.

Being a small, inexpensive, industry-specific complaints handling body yet still

operating within accepted (e.g. SPSO) and approved principles and processes, WWS very much fitted the actual model for complaints-handling suggested by Crerar.

*(The Report of the Independent Review of Regulation, Audit, Inspection and Complaints Handling of

Public Services in Scotland, published September 2007)

Page 4 of 14

WWS - HOW WE WORK

WWS responsibility for second tier complaints-handling means that we take forward individual and systemic issues.

WWS can also identify complaint trends and seek to mitigate future occurrences.

WWS does this by engaging with water and sewerage service providers proactively

and sharing customer contact intelligence to justify necessary business changes to those areas/issues giving rise to complaints.

WWS is also a statutory consultee and via various other forums engages with all

water industry stakeholders, e.g. Scottish Government Outputs Monitoring Group, and is able to bring a credible, authoritative evidence base which contributes to ensuring that Government and industry priorities are aligned insofar as possible with those of customers, as evidenced by our customer contact database.

Were any issues to be sufficiently serious to merit it, WWS could use its powers of

statutory recommendation, albeit to date this has not been required, the bulk of our engagement with industry service providers and stakeholders benefitting from a general willingness to use our credible, authoritative customer contact data to benefit customers and the industry and reduce further complaints.

Successes of our approach to date and the benefit of the joint statutory 2nd tier

complaints-handling and broader customer representative role, have been able, within an annual reporting year, to identify systemic issues, e.g. meter reading or septic tank issues affecting a large geographic area in North of Scotland and requiring remedial action to be taken systemically to eradicate these. We have also been able to ensure that Ministerial Objectives more correctly coincided with customer priorities, e.g. emphasis changing from investment in Development Constraints and Odour (no longer generating complaints, i.e. remedied by interim action) to External Sewer Flooding and Capital Maintenance (areas creating increasing customer contacts).

Other successes in WWS’s approach include the development and revision of

Scottish Water’s Code of Practice and ongoing development of Scottish Water’s Consultation Code. In addition to this, we work closely with WICS in developing the future scoring mechanism for those aspects of Overall Performance Assessment relating to Customer Service which includes performing an audit of both written and telephone complaints. All of these are set to deliver service improvements for customers and ultimately reduce the need to complain.

WWS acts as robust, independent, evidence-based expert on the water industry in

respect of its statutory complaints-handling role.

In respect of WWS broader customer representative roles, WWS are not consumer advocates but represent the customer group as a whole, on the basis of the credible, authoritative evidence-base from customer contacts/complaints.

Page 5 of 14

In order to assist WWS in dealing and mitigating with systemic issues identified via customer complaints/contacts, WWS has four National Committees:

- Charging

- Investment - Service Quality - Customer Engagement

By law, WWS also has 5 Regional Panels: - North West - North East - South West - South East - Orkney, Shetland & Western Isles

WWS has dealt with all complaints to a 96% customer satisfaction level (2006-07), even where we have not necessarily found in favour of the complainant, i.e. they still feel that they have had their complaint examined robustly. (62% of respondents feel that SPSO did not meet their expectations)*

WWS (2006-2007) average turnaround times were:

General Enquiry – 2 days Investigation – 20 days 2nd Tier Complaint – 62 days (Such timescales are favourable in the context of analogous bodies)

Increased median turnaround times at 1, 12 and 35 days respectively have now been set. (Excessive time taken to deal with the complaint is the highest cause of complainant dissatisfaction with SPSO)*

The water industry in Scotland was until relatively recently often criticised.

Improvements in the industry have been marked and progress praised. WWS has, in a relatively short period, along with all other industry stakeholders, played a not insignificant role in industry progress and improvements to date to the benefit of customers, the industry and Scotland as a whole.

*(ORC International report “Scottish Public Services Ombudsman Complaint Satisfaction Survey 2007)

Page 6 of 14

FCSAG REPORT – WWS COMMENTS

Insofar as much of the general comment in the FCSAG Report reiterates and concurs with much of the Crerar Review, many of the basic principles referred to are accepted.

WWS is disappointed that unlike the majority of bodies included in the FCSAG,

WWS was not afforded the opportunity to contribute to the working group.

The FCSAG Report contains certain assumptions in respect of WWS, its role and the water industry in Scotland in general, which are erroneous.

As previously referred to, WWS operates SPSO licensed complaints handling

systems and processes, in accordance with accepted basic complaints handling best practice principles, such as stated by SPSO and BIOA.

Unlike many complaints handling bodies, WWS is not limited to narrow heads of

complaint, e.g. maladministration. Complainants within the sector are not directed to a large selection of potential complaints-handling bodies, which leads to customer confusion. The WWS complaints-handling landscape is therefore significantly simpler than most other sectors in Scotland.

Many of the FCSAG Report recommendations to Ministers relate to adopting

common complaint handling processes and principles, within a simplified complaints handling landscape. WWS is therefore already operating in an environment as generally recommended by the FCSAG Report. WWS is otherwise fully acceptive of the general increased complaints-handling standardisation role for SPSO, WWS already according with this model.

WWS is supportive of the FCSAG comments in respect of interaction and

encouraging best practice with the frontline service providers and already adopts such an approach with all public and private sector water and sewerage service providers.

WWS already promotes “signposting” both within and outwith the water industry

and other complaints handling or consumer bodies. WWS welcomes the FCSAG recommendations for further emphasis in this regard. The FCSAG Report fails to recognise that the most successful “sign-posting” any complaints-handling body can have is via those bodies whose complaints it deals with – it is therefore largely already within current complaints-handling bodies powers to address this issue.

Much of the emphasis in both the Crerar Review and FCSAG Report, are in

respect of the convoluted landscape and various processes for certain types of complaints within Local Authority, Health Care and Education - areas where SPSO already has a remit.

Page 7 of 14

Due to WWS current complaint handling powers not being limited to either individual complaints or specific narrow complaint remits, WWS has within its own jurisdiction in many ways more powers than SPSO. Even the increased powers the FCSAG Report recommends for SPSO in dealing with systemic complaints more proactively, will still fall far short of WWS ability to proactively seek to mitigate the causes of individual and multiple/systemic complaints or undertake an own-initiative investigation.

WWS are not included within the definition of dealing with public service

complaints, as defined within the FCSAG Report. The FCSAG Report would appear to have assumed incorrectly that WWS only deals with complaints against Scottish Water – a fortiori WWS should not by the FCSAG’s own definition be included within the scope of the report.

WWS is the complaints-handling authority for various water and sewerage service

providers, of which one is a publically owned corporation, i.e. Scottish Water, but where other corporations are private sector, e.g. Business Stream and other competitors.

The FCSAG Report is silent as to how a diminution of WWS current complaints-

handling remit by a transfer to SPSO can be justified as being in customers’ interests. WWS view is that unless any transfer of complaints-handling role guaranteed WWS current powers, such a move would be against the interest of customers.

The FCSAG Report states that Police Complaints Commissioner for Scotland

(PCCS) should be excluded from any transfer to SPSO, as being a new entity “complaints are still bedding in”. The same logic has however not been applied to WWS new (1st April 2006) complaints-handling role and this is considered to be incongruous.

The FCSAG Report refers to the WWS complaints-handling function and its

transfer to SPSO, creating the inference that what would not be transferred, i.e. the more proactive and systemic elements of WWS’s role done under a “customer representative” banner would be a viable entity. This is an erroneous assumption, complaint-handling being at the very core of all WWS activiity and its removal basically striking at the very heart of what WWS does.

No reference is made in FCSAG to the analogy between WWS and the Scottish

Legal Complaints Commission (SLCC), i.e. both created by statute, but both funded by the industry sector whose complaints they deal with. This is regarded as an inconsistent application of the FCSAG Reports own logic.

Failure by the FCSAG Report to see the analogies between WWS and other utility-

ombudsman, reiterates the previously made assertion that the FCSAG Report has made its recommendations on the erroneous assumption that WWS is the complaints handling authority for Scottish Water only, i.e. fails to take cognisance of industry competition.

Page 8 of 14

Removal of “Scottish Water” complaints to SPSO (even if current WWS powers could be matched) and leaving the remainder for private sector organisations with WWS (or any other body for that matter) to deal with is considered illogical. WWS view is that as such private entities are not operating as providers on behalf of a public sector body, they would fall outwith SPSO’s remit, as with any other privatised utility provider.

The FCSAG Report’s comments re private sector customers (currently part of

WWS remit) who are not satisfied with the way their complaint has been dealt with by their service provider being able to switch to a different service provider, are overly simplistic and potentially disenfranchises private sector customers - even the Office for Fair Trading accepts that recourse to a robust, independent complaints-handling body is a vital component within competitive industry sectors.

The transfer of WWS (an industry funded body) complaints-handling functions to

SPSO (a parliamentary/government funded body) goes against the principle of incentive-based “scrutiny” and would actually increase current public spend. Whilst it is accepted that the industry-paid levy could also “transfer” this would be the only sector based levy in respect of any of SPSO’s remit and would likely be resisted by the industry as singling it out, unless all other sectors paid a pro-rata share of SPSO’s annual budget. The failure of the FCSAG Report to comment on such issues is considered a missed opportunity.

The FCSAG Report already demonstrates (Annex B) that the amount of tranches

of process operated by WWS is at the minimum considered best practice, i.e. complaint-then-review within organisation complained of, then to formal external complaints-handling body. None of the streamlining referred to within the report would apply to WWS and the argument to transfer over to SPSO.

The FCSAG Report goes on at length about the key priorities to simplify

processes/landscape as being care and other sectors, yet still advocates against the logic applied elsewhere by it in not taking the Care Commission’s complaints handling role away. This leaves there being more tranches of complaint in the care and other sectors than the minimum applied in the water sector – again an incongruous application of the FCSAG Report’s logic. Whilst some prima facie justification is attributed to there being “vulnerable” customers, this could be stated to apply in many sectors, not least Water.

The only ostensible argument for transferring WWS role to SPSO would be to

create one less “public” body, notwithstanding all of the abovementioned disadvantages in doing so. Whilst WWS is supportive of the general principle in reducing public bodies, particularly where currently there is customer confusion, any transfer to SPSO would not per se reduce the amount of public bodies, the FCSAG Report inferring that the non-complaints handling part of WWS would be left, or the private-sector complaints element would remain with it.

WWS disagrees with the FCSAG Report in respect of its non-support of SPSO (or

analogous bodies) to enforce binding findings, if required. Whilst it is accepted that this may very rarely be needed, its existence is likely to simplify the discursive dynamic between SPSO and bodies investigated by it, as WWS has found in respect of its own powers to make statutory recommendations.

Page 9 of 14

WWS considers that autonomy should be given to any greater network group set up to adopt the general principles of complaints-handling, the possibility of Parliament doing so potentially being too prescriptive.

WWS disagrees that primary legislation would be required to achieve many of the

benefits aimed for in the Crerar Review/FCSAG Report, e.g. information sharing, shared services, better networking and sign-posting – WWS is already performing well in all of these aspects. Similarly, large tranches of bodies covered already fall within the SPSO’s current jurisdiction which would permit changes in practice/process, etc. to be agreed bilaterally.

Page 10 of 14

Option 1: Transfer WWS Statutory Complaints-Handling Function to SPSO

Advantages: Greater “Brand” Awareness. Perception of being closer to “Centre” of Complaints-Handling in general. Possible perception of “greater clout” in interactions with service-providers/stakeholders. Non-key stakeholders on periphery of water industry all included under greater jurisdiction of one body.

Disadvantages: Would lose current synergies and expertise between statutory complaints-handling and customer representative role. Even the FCSAG Reports recommendations for SPSO to have increased powers, still falls short of current WWS role. Customers would lose out as current WWS role would be contstrained. Benefits of current WWS role, powers and approach would be lost. Would not per se reduce number of bodies in public sector landscape. Would increase demand on public purse. Could distract from progress in other identified priorities for simplication already within SPSO remit. Does not satisfactorily address public/private split in post-competition water industry. Would not per se address current public criticism of SPSO. Would require removal of office from Alloa (unless operated as a satellite office). Would require Primary legislation.

Page 11 of 14

Option 2: Expand WWS Remit/Transfer SPSO functions to WWS

Advantages: Maintains WWS role powers and approach within water sector. Would ensure benefits of WWS role, powers and approach to expanded remit/all public sectors currently under SPSO remit (expanded or otherwise). Could be achieved on cost-neutral basis. In addition, if all funding was via each sector in jurisdiction, would ensure consistent incentive-based complaints-handling and free and relieve all funding from public purse. WWS approach and powers could reduce tranches of current public criticism against SPSO. Keeps national complaint-handling authority in Alloa, as part of Scottish Government measures to help stimulate depressed local economy. Makes WWS model for complaints-handling and subsequent benefits to sectors concerned.

Disadvantages: Would require Primary legislation. Would require rebranding exercise. Could relocate SPSO posts in Alloa. Some potential benefits would take time to materialise.

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Option 3: “Cut the Public Cord”

- Set up WWS as purely industry-backed ombudsman

Advantages: Reduces the number of public sector bodies in Scotland. Keeps most of benefits of current set up. Allows benefits of ombudsman role and customer representative remit to be retained. Could be set up to make findings binding on service providers, if required. Neutral to current organisational location in Alloa. Would comply with industry self-funded, incentivised complaints-handling model. WWS still able to deliver current high service levels to customers and industry.

Disadvantages: Could be perceived “loss of status” in no longer being regarded as a public sector body. Would lose power to make statutory recommendations to other public sector stakeholders. Current staff public-sector T & Cs/ pension entitlement would require to be maintained.

Page 13 of 14

Option 4: Keep WWS as present

(- with increased inter-complaints-handling and customer representative benefits being pursued on collaborative basis)

Advantages: Would not result in any more public bodies than recommendations of FCSAG Report, which relates only to WWS complaints-handling function. Would allow successes to date to continue to be realised. Is not funded by public purse. Would keep benefits of WWS current role, powers and approach. Would still allow shared services, joint-working, best practice, etc. to be shared throughout greater complaints-handling bodies. Cost – neutral. Keeps national complaints-handling body in Alloa. Most closely fits ombudsman needs of unique competitive water industry in Scotland.

Disadvantages: Potential lesser brand awareness outwith water industry.

Page 14 of 14

Trish Godman MSP Convener RSSB Committee Non-Executive Bills Unit T2.60 The Scottish Parliament Edinburgh EH99 1SP

24 February 2009

Dear Convener REVIEW OF SPCB SUPPORTED BODIES COMMITTEE Thank you for your letter of 12 February in which you ask a few follow up questions to the evidence I gave to the Committee on 3 February 2009. A response to the Committee’s questions is attached. When considering this response, I thought that it might be helpful to summarise the functions undertaken by the Scottish Prisons Complaints Commission (the Commission) that it is proposed will transfer to the Scottish Public Services Ombudsman (SPSO) and to clarify how these functions interact with the Scottish Prison Service’s (SPS) internal processes. I have also tried to summarise the potential benefits of transferring the functions as the Committee asked. The Commission’s Functions The purpose of the Commission is to provide an independent element in the prisoner complaints process where there is a suggestion of maladministration or service failure. Unless there are exceptional circumstances, the Commission only becomes involved in complaints when prisoners have exhausted the SPS internal complaints procedures. The Commission focuses on complaints from prisoners and not those from other individuals or organisations. The work of the Commission therefore sits alongside – but does not encroach on – the Scottish Ministers’ statutory responsibilities as set out in the Prisons and Young Offenders Institutions (Scotland) Rules 2006. The Commission only investigates complaints arising from decisions or actions for which the SPS is responsible. These could include decisions or actions of people working in prisons but not directly employed by SPS. The Commission would not investigate complaints from prisoners about decisions made by outside bodies such as the police, DWP, Immigration and the Parole Board. Matters concerning the clinical judgement of medical staff, issues about conviction or sentence and cases which are the subject of civil litigation or criminal proceedings are also excluded. The Committee will be aware that some of

these other bodies, notably the Parole Board and the NHS, are already under the jurisdiction of the SPSO. The Prisons and Young Offenders Institutions (Scotland) Rules 2006 make it clear that decisions about discipline are for the Prison Governors (or directors in private prisons) and for Scottish Ministers (in practice the SPS’s Chief Executive). For the avoidance of doubt, can I confirm that the Commission does not have a formal (or statutory) appellate function in complaints relating to prisoner discipline. The only aspects of the disciplinary (orderly room) proceedings that the Commission, after due investigation, may make a formal recommendation upon are maladministration and service failure. The remit given to the Commission by Scottish Ministers does allow the Commission the facility to express an opinion to the Chief Executive on the verdict and any consequent sentence imposed. However, such an opinion does not carry the same weight as a formal recommendation. I can also confirm to the Committee that it is not intended that this aspect would form part of the functions that it is proposed would transfer to the SPSO. The Committee should also be aware that there would be no necessity to change the current SPS complaints process should the decision be to transfer the functions undertaken by the Commission to the SPSO. The effect of abolishing the Commission is to provide a prisoner with a direct access to the SPSO once he or she has exhausted their statutory rights of review under the Prison Rules, provided the complaint falls within the remit of the SPSO. Once the complainer exhausts their statutory right of review under the Prison Rules, the SPSO will have the power to investigate a complaint made by that prisoner of maladministration or service failure against the SPS on behalf, and in exercise, of Scottish Ministers functions. Benefits of transferring the Commission’s functions to SPSO The obvious benefits of the proposed transfer may be summarised as: 1. Improved service - the SPSO has a greater capacity than the Commission, significantly more

investigative experience/expertise and is supported by a much better case management system. 2. Less duplication - the SPSO already has partial jurisdiction over SPS (as part of Scottish

Government). With the exception of the Police and the Surveillance Commissioners, the SPSO already oversee all the main agencies that work in partnership with the SPS. The result of the transfer is that one body will be able to consider multi-agency complaints as part of a single investigation without having to divide jurisdiction.

3. Improved accessibility & communication – the SPSO has a specialist Outreach Team with

established links with a range of consumer support agencies and the SPSO already acts as the one-stop shop for most service complaints.

4. Independence – the SPSO is fully independent of Government, reporting directly to Parliament. 5. Easier to understand system - the proposed extension to the SPSO’s remit to include the design

and management of complaints system should help the SPS to achieve best practice and appropriate benchmarking with other public service systems.

Conclusion I hope this information provides confirmation that, in my opinion, the transfer of the Commission’s functions to the SPSO is both sensible and practical. I believe such a change would provide benefits to complainers, to the SPS and to the public. Prison complaints are not always straightforward but, they are generally simpler than the complaints investigated by the SPSO in such matters as health, planning and education. Indeed, I would argue that the greater the complexity, the greater the justification for the transfer. The SPSO is the pre-eminent inquisitorial investigation agency in Scotland – it is the right place for prisoner’s complaints to be considered. I hope you find the above helpful and I am of course happy to answer any further questions the Committee may have. Yours faithfully RICHARD SMITH Interim Complaints Commissioner

Specific Questions/Requests for Information 1. Do complaints fall in to two categories – the first relating to unresolved difficulties after

SPS process has been exhausted and whether the correct process has been followed in Orderly Room Hearings?

No. These are not categories per se. There are 4 ‘headline’ categories of complaints within the overall CP process: General Complaints, Sensitive or Confidential Complaints, Medical Complaints and Complaints in relation to Orderly Room Decisions (discipline). The Commission’s remit is to investigate aspects of maladministration and/or service failure if these aspects appear in any of the categories. 2. Provide numbers of complaints by both categories? See table below. Please also see Answer 1 above but note that the Commission does not hold details of complaints under the 4 ‘headline’ categories but instead holds details against 50 subject categories

Orderly room hearings (OR) is one of the 50 categories, and accounted for 7% of complaints over last 3 years.

Orderly room hearings (OR) are a recognised but unquantified factor in other categories, such as location or status.

Totals and OR summarised in table below 2005/06 2006/07 2007/08 Complaints Received 460 403 324 Within Jurisdiction 363 298 228 OR received 41 19 31 OR in Jurisdiction 32 14 20 3. Detail the sort of unresolved difficulties prisoners complain about to the SPCC? General complaints tend to revolve around regime, infrastructure and conditions and topics cover such things as canteen facilities, exercise, visits, mail and property issues. 4. Do Orderly Room Complaints deal with prison officers’ discipline? No. 5. Does the SPCC have a role in dealing with disciplinary complaints involving the conduct of

prison officers? No. Prison officers’ discipline is a matter for SPS, although the Commission may make recommendations to the Chief Executive where it finds that a prison officer’s conduct constitutes maladministration or service failure.

6. Implications of any future judgement affecting the current application of Article 6 of the

ECHR to disciplinary proceedings against prisoners in Scottish Prisons? Any change would be as a consequence of a court ruling and I am not aware of any pending relevant case. The implications of any future judgment will depend on the terms of judgement. However, in general terms, if Article 6 of the Convention was found to have further relevance to prison disciplinary hearings then there may need to be a right of appeal to an independent and impartial body. An Ombudsman function traditionally offers neither. Like the Commission, an Ombudsman makes recommendations in response to complaints and cannot impose redress/sanction. The Commission has no appellate function or locus in relation to disciplinary matters involving the imposition of sanctions and it is not proposed that the SPSO should take on such powers. The potential application of Article 6 does, in theory, constitute a risk however I am not in a position to assess whether this risk is great enough to influence the Committee’s consideration of the proposal to transfer the functions of the Commission to the SPSO. 7. Any issues involving Article 6 compliance in respect of the SPCC’s handling of disciplinary

complaints? The consideration of maladministration and service failure by either the Commission or the SPSO would not be impacted by issues of compliance with Article 6. 8. Provide information concerning difficult issues in relation to Scottish Ministers’ appellate

function in relation to Orderly Room Hearings. Orderly Room verdicts and sentences can be quashed by the Scottish Ministers using the power contained in Rule 131 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006. It is proposed that Scottish Ministers retain this power and that SPSO should only consider maladministration and service failure. We have expressed some concerns about the mechanism for bringing matters to ministerial attention but, such concerns should be addressed in the ongoing review of the Prison Rules and are not considered significant to impact on the Committee’s consideration of the proposal. 9. Provide details of spending (including details of separate issues) on legal advice over the last

3 years. There was no spending on legal advice for 05/06, 06/07 and 07/08. Around £30k is likely to be spent in 08/09 with advice received on 6 separate issues. Some of these issues relate to clarifying the precise remit and operation of the Commission and therefore the ongoing, case-related requirement may well be lower than £30k.

10. Provide details of staff complement and current roles. The SPCC operates with an Interim Commissioner and 2 staff: • The Assistant Complaints Commissioner is responsible for the investigation of complaints

including representations from SPS and for the initial consideration of any legal advice obtained. The Assistant Commissioner will normally manage the investigation up to the drafting of the report or any closing letter to prisoner.

• The Case Work Officer records, processes and screens all complaints received and recommends

whether to continue with complaint. The Officer manages a case-load of complaints providing advice, assistance and detailing the precise matters the Commission will be investigating. The Officer also manages the office of the Commission and supports the Assistant Commissioner with investigations.

11. Provide full budget and spending costs for last 3 years. Year Budget Actual Spend Staff costs Admin Costs Total Spend 2005/6 £137k £121k £11k £132k 2006/7 £137k £128 £12k £140k 2007/8 £137k £127 £11k £138k



Prisons Complaints Process

Introduction 1. In addition to the Scottish Prisons Complaints Commission’s further submission dated 24 February 2009, the Committee may find it helpful to have details of the system for dealing with prisoner complaints. Prisons Complaints Process 2. Our understanding is that the Scottish Prison Service operates four processes for dealing with prisoner complaints. The attached note explains how the system operates.

Clerk to the Committee

5 March 2009

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Prisons Complaints Process The SPS operates four processes for dealing with prisoner complaints, (which are dependent on the nature of the complaint). These are: CP1 – General Complaints; CP2 complaint of a sensitive or confidential matter; CP3 – Medical complaints; CP4 – Complaint about an orderly room (disciplinary) decision. They follow broadly similar paths as shown in the process maps below. The same system operates in private prisons. These processes would not change if the SPCC’s functions transferred to SPSO. CP1 General Complaints and CP2 Sensitive or Confidential Complaints The CP1 process allows a prisoner to make a general complaint (that is not medical, sensitive/confidential or about an Orderly Room decision). If the prisoner is not satisfied with the response received, the complaint can be submitted to the next stage. Once the complaint has been answered by the Governor, if the prisoner remains dissatisfied with the response, he/she can send the complaint to SPSO. The different stages in the process and the time limits imposed are shown below. Reference is made to Rules 122-126 of The Prisons and Young Offenders Institutions (Scotland) Rules 2006 The CP2 process allows a prisoner to take his/her complaint directly to the Governor-in-Charge and is not read by other staff. CP2 process can only be used for sensitive or confidential matters. If the complaint is not sensitive or confidential, the Governor may advise a prisoner that the CP1 process must be followed. Reference is made to Rule 127 of The Prisons and Young Offenders Institutions (Scotland) Rules 2006.

Prisoner 1. completes a CP1 or (CP2 form go to stage 5)

Residential Officer

2. responds to prisoner within 24 hours

Unit Manager 3. responds to prisoner within 24 hours

Internal Complaints Committee / Controller (contracted out prison)

4. convenes within 7 days

Governor in Charge/Director or Senior Controller (contracted out prison) 5. responds to prisoner within 7 days

Scottish Prisons Complaints Commission (SPSO)

6. Considers complaint

2

http://www.opsi.gov.uk/legislation/scotland/ssi2006/20060094.htm#122





CP3 Medical Complaints The diagram below shows the process through which a prisoner can make a complaint about his/her medical treatment in prison. It is answered in the first instance by the prison’s Medical Officer. If the prisoner is not satisfied with the response received, the complaint can be submitted to the next stage - Scottish Ministers. Once the prisoner has received a response from the Scottish Ministers, if he/she remains dissatisfied and as long as the complaint does not involve clinical judgement, the complaint can be sent to the Commission. Reference is made to Rule 128 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006

Prisoner

completes a CP3 form

Medical Officer Response time - 7 days

Scottish Ministers

Response time - 28 days

[if the complaint does not involve clinical judgement]

Scottish Prisons Complaints Commission (SPSO) CP4– Complaints About Orderly Room Procedures and Appeals about Orderly Room decisions This process is used to make a complaint about an Orderly Room decision (disciplinary) when it relates to service failure or maladministration and an appeal of Orderly Room decision when it relates to the finding of guilt or the punishment imposed. For service failure and maladministration If the Orderly Room was adjudicated by the Governor in Charge the prisoner can contact SPSO directly. Reference is made to Rules 130 of The Prisons and Young Offenders Institutions (Scotland) Rules 2006. If the adjudicator was someone other than the Governor in Charge then the prisoner can take his/her complaint in front of the Internal Complaints Committee (ICC). If they are not satisfied with the decision of the ICC, the complaint then goes to the Governor in Charge and, if the prisoner remains dissatisfied after this stage, the complaint can be sent to the SPSO. For an appeal of an Orderly room decision If the Orderly Room was adjudicated by the Governor in Charge the prisoner can ‘appeal’ to Scottish Minsters. Reference is made to Rule 131 of The Prisons and Young Offenders Institutions (Scotland) Rules 2006. If the adjudicator was someone other than the Governor in Charge then the prisoner can appeal in front of the

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Internal Complaints Committee (ICC). then to the Governor in Charge and, if the prisoner remains dissatisfied to Scottish Ministers (in practice the Chief Executive of SPS) who has the power to Quash, remit, mitigate or substitute any punishment imposed.

Prisoner Completes a CP4 form

Was the Governor in charge of the adjudication?

No Yes

Internal Complaints Committee / Controller (contracted out prison)

Inquiry within 7 days

Governor in charge/Director or Senior Controller (contracted out prison) Response time – 7 days

Service failure or maladministration Appeals of orderly room decisions

SPCC (SPSO) Scottish Ministers (Chief Executive of SPS)

Rule 131 refers

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1

REVIEW OF SPCB SUPPORTED BODIES COMMITTEE RESPONSE BY SCOTTISH PUBLIC SERVICES OMBUDSMAN TO THE REVIEW OF SPCB SUPPORTED BODIES COMMITTEE Thank you for your letter of 26 February following the additional evidence I provided in a letter dated 29 January. Here is my response to the points you raise. 1. In relation to your first answer the Committee noted the few references to SPSO in the MORI research and, in particular, the absence of any specification covering the ‘high level of awareness’. Do you have the information or data that was available to MORI to enable them to make that statement? Regrettably, we do not have access to any more information than was published by the Government in the full report (reference already provided). The research was qualitative: Ipsos MORI conducted a series of focus groups across Scotland from which the conclusions were drawn. 2. In relation to your second answer, while noting all that you provide, would the Committee be correct in coming to the conclusion that no evidence is available to support a conclusion that public awareness of an Ombudsman is higher than for a commissioner? We have been unable to source direct, quantifiable survey evidence that supports the proposition. However, we do not wholly agree that the arguments and information we have submitted constitute an absence of evidence. We feel they provided general support for this point. We note also that this point is rehearsed in the SPICe ‘models of governance’ paper prepared for the RSSB Committee, in which the Scottish Executive’s consultation paper from 2000 is quoted as follows: “The Executive is inclined to drop the use of the Commissioner title as it seems to cause confusion with other types of office and does not clearly indicate what the job is.” We would also draw to the Committee’s attention an ongoing joint project between BIOA and the Cabinet Office to produce guidance for Whitehall Departments on the use of the term Ombudsman. A draft paper we have seen includes the following advice: “Unless there are overriding reasons to the contrary, use the term ‘Ombudsman’ for genuinely independent redress schemes, as it has wide and increasing national and international public use and understanding, rather than other names such as ‘Commissioner’ or ‘Adjudicator’.” If the Committee would find it helpful to learn more about this work we suggest that BIOA or the Cabinet Office should be approached directly.


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Finally, in this connection, the Committee may also be interested in awareness research conducted some years ago by MORI for the Parliamentary, Health Service and Local Government Ombudsmen in England, though it too does not address the comparison issue directly. Further details at: http://www.lgo.org.uk/GetAsset.aspx?id=fAAyADMAOQB8AHwARgBhAGwAcwBlAHwAfAAwAHwA0 3. On the third question, thank you for the background material. It would be helpful if you could indicate your views on a legislative provision which would require approval of the sponsoring body before the Ombudsman could initiate any systemic investigation. The Committee appreciate the need to avoid impinging on the Ombudsman’s operational independence although I think it is generally accepted that some budgetary and resource control is appropriate. Perhaps any such provision could be prepared to avoid impinging on core activities. We do accept there is a need for budgetary and resource control. Although in some circumstances, undertaking a systemic investigation may allow us to handle a series of individual complaints across Scotland more efficiently, it is clearly the case that such investigations would require resourcing commitments. The existing mechanisms by which the SPSO submits, for discussion and agreement with the Parliament, annual activity plans together with the associated resourcing requirement, and then publishes annual reports on which it is held to account, would we submit offer an adequate opportunity for monitoring the resourcing implications of systemic investigations – this is how the issue is managed in other jurisdictions. We think a useful distinction can be made here between discussions about the amount of budget and resource set aside for or actually used for such investigations and the decision around the subject matter of such investigations. The decision about the subject matter is one on which we would need to retain independence and, on this point, we would draw your attention to paragraph 2(2) of Schedule 1 to the Scottish Public Services Ombudsman Act 2002 which provides that the Ombudsman, in the exercise of that officer’s functions, is not subject to the direction or control of any Member of the Parliament; any member of the Scottish Executive; or the Parliamentary corporation (except in respect of accounting requirements and laying an Annual Report). The report of any systemic investigation would be laid before Parliament so this would not prevent discussion on the content once the investigation was complete but there should be no suggestion of undue influence in the decision to undertake a specific investigation. 4. Given the helpful information provided in answer to the fifth question, does that mean that you have sufficient existing accommodation to allow for example, the Commissioner for Public Appointments for Scotland to be housed in 4-6 Melville Street?

http://www.lgo.org.uk/GetAsset.aspx?id=fAAyADMAOQB8AHwARgBhAGwAcwBlAHwAfAAwAHwA0

http://www.lgo.org.uk/GetAsset.aspx?id=fAAyADMAOQB8AHwARgBhAGwAcwBlAHwAfAAwAHwA0


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With some alterations, it would be possible to accommodate up to six more workstations in semi-open plan office space with access to meeting rooms. Therefore, dependent on the requirements of the Commissioner for Public Appointments (with whom we have had no recent discussions on this subject) it would be possible to accommodate them. 5. Moving on to your seventh answer I am afraid that it is not clear to the Committee how, in practice, the arrangements you describe for the funding of the UK Parliamentary Ombudsman differ to the financial and governance arrangements that the SPCB has indicated apply to the SPSO. Could you make it clear in what way the present arrangements provide the possibility of the SPCB being able to exercise “undue influence, interference or micro-management” over the SPSO? 6. The Committee was interested to note tensions caused by complaints about the SPCB being received by SPSO. To assist us in exploring this aspect further with SPCB witnesses we would welcome what further information on these matters you are able to provide. Similarly any examples or potential examples that you can provide which inhibit “the Parliament as a whole from either holding us to account or interacting with us in a way that allows our work to effectively support the Parliament in holding government to account” would be useful. It would also be helpful if you would elaborate on how the UK rules would assist here. We have decided to reply to these two, related questions together. On the broad issue of the Parliament’s interaction with the SPSO, my essential concern is that the statutory role given to the SPCB in relation to this office’s financial arrangements creates a danger that the Ombudsman is regarded by the Parliament as a whole as being the SPCB’s `baby’ and that this stands in the way of the Parliament developing the sort of symbiotic relationship the House of Commons has with the UK Parliamentary Ombudsman. The Scotland Act 1998 established the SPCB to provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament’s purposes. It is a body within the SPSO’s jurisdiction. The equivalent body for the House of Commons is the House of Commons Commission which has no involvement in the funding of the UK Parliamentary Ombudsman. Nor, incidentally, is the Commission within the jurisdiction of the UK Parliamentary Ombudsman whose office takes the view that as they were set up to serve Parliament by looking at complaints against the executive it would be unusual for them to have oversight over one of the Parliament’s offices. The arrangements for the UK Parliamentary Ombudsman’s funding which I described in my previous submission allow both for proper scrutiny and accountability of the Ombudsman and appropriate checks and balances should the executive, as source of the Ombudsman’s funding, seek to place inappropriate constraints on his or her operations. There are no such checks and balances in the current Scottish arrangements. As I described in my previous submission, the Select Committee for


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Public Administration both hold the UK Parliamentary Ombudsman to account publicly and make effective use of the Ombudsman’s findings to hold the Government to account. We receive very few complaints about the SPCB but consideration of one of the complaints which we have received showed that it had not complied with the requirement placed on it by section 22 of the Scottish Public Services Ombudsman Act 2002 to make information available to the public about their right to bring a complaint to the Ombudsman. We drew this to the attention of the SPCB’s Director of Resources and Governance, who was our point of contact in relation to these complaints, in 2006 and again in 2007. Given that he was also the official with lead responsibility for matters relating to the SPSO’s budget I hope the Committee will understand why I have referred to potential tensions. 7. The Committee has noted the Craigforth findings covering Quarters 1 and 2 of 2008 which you helpfully refer to in your comments on Mr French’s written evidence, where in particular, the time taken to deal with their complaint is rated satisfactory by only 39% of respondents. The Committee is grateful for your answer to question 8 and note you are supportive in principle of the suggestion made. Given that, it seems we agree the need to consider what an appropriate and practicable measure would be. To assist it would be helpful if you could provide further detailed information on the time taken to reach decisions. In particular can you break down the 88% of decisions you refer to into quarters and also indicate the actual time the other 12% took? If it would assist in understanding, the nature of the relative complaints could also be provided. Any suggestions as to an appropriate approach would be welcome. The SPSO acknowledges that the time taken to deal with complaints is very important to complainants – we are committed to dealing with complaints as quickly as we can (see for example our service standards at: http://www.spso.org.uk/about-us/our-service-standards). Some complaints however take a considerable amount of time to resolve. Almost by definition, only the most complex or intractable disputes reach the SPSO, and some elements of the process are beyond our direct control. The Committee’s suggestion to copy the practice for Parliamentary Standards complaints (where, for every case still open after the set time, a report is made to the Standards etc Committee) is not unlike the existing practice at the SPSO: where cases exceed our turnaround time targets, the Executive Board already receives an exception report. Improving the transparency of this kind of arrangement would need to take account of the legislative requirement for the SPSO to conduct its investigations in private. But there may be a way of respecting this whilst making summary information on ‘exceptional’ cases available to the Parliament and thereby increasing accountability and providing the kind of resourcing trigger that the Committee has described. We would suggest that more detailed analysis on this issue would be needed before setting any timeframe and that primary legislation would require careful drafting to permit future flexibility. We would be happy to discuss this with the Committee in further detail if that would be helpful.

http://www.spso.org.uk/about-us/our-service-standards

http://www.spso.org.uk/about-us/our-service-standards


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You have asked for further information on the time we take to reach decisions – see the attached graph giving information on the numbers of cases determined at particular ‘ages’ last year ( a year in which a considerable number of quite old cases were determined). I trust the Committee finds this further information helpful.


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Annex 1

Complaints determined in 2007/08 by time taken to determine (all steps)

0

100

200

300

400

500

600

700

800

900

1000

1100

1200

1300

1400

1500

time taken to determine

num

ber o

f cas

es

Investigation 0 2 129 56 55 52 47 37 30 9 2 3 2 0 1 0 0 0 1

Pre-investigation 1418 646 339 21 17 6 7 1 0 0 0 0 0 0 0 0 0 0 0

0-2 Weeks

3-14 Weeks

15-52 Weeks

13 - 15 months

16 - 18 months

19 - 21 months

22 - 24 months

25 - 27 months

28 - 30 months

31 - 33 months

34 - 36 months

37 - 39 months

40 - 42 months

43 - 45 months

46 - 48 months

49 - 51 months

52 - 54 months

55 - 57 months

58 - 60 months

88% 93% 97% 99.40% 99.80% 99.90% 100%

RSSB/S3/09/4/11

Agenda item 2

REVIEW OF SPCB SUPPORTED BODIES COMMITTEE FURTHER RESPONSE BY MR FRANK FRENCH TO THE REVIEW OF SPCB SUPPORTED BODIES COMMITTEE I have read Professor Brown’s response to my submission of the 18th February 2009 and would like the opportunity to respond to some of the things that were said. Professor Brown says that she is satisfied that the decision to reject my complaints were soundly based, that my submissions include a number of inaccuracies and unsupported assertions and that she would welcome the opportunity to provide evidence to refute any of the points raised in my submission. Professor Brown can make these statements as she know that she is completely protected by the SPSO act which ensures that all decisions made by the Ombudsman cannot be challenged by anyone. I would like the opportunity for the RSSB committee to review my complaints of maladministration, the evidence I provided and then ask Professor Brown to provide her “sound response”. I would suggest to the RSSB committee that they may wish to take up Professor Brown’s offer and ask if she will wavier her right under the SPSO act so that the RSSB can review my complaints in detail and get her response so that the committee can determine if the decision to reject my complaints were soundly based. Professor Brown says that at all times they have acted professionally. I must admit I felt Professor Brown’s response was more of a character assassination than a well thought out and logical response to an intellectual discussion. You know when someone is losing the argument when they resort to character assassination. On page 2 of Professor Brown’s response she says that people may have valid grounds for complaining about our service and such concerns should be investigated, answered and learned from. She says that the SPSO introduced a scheme to allow dissatisfied member of the public to pursue service complaints about the SPSO and that these are reported and published on their web site. I would like to bring to the attention of the RSSB committee that what Professor Brown has written here is only partially true. When a member of the public complaints about their treatment by the SPSO the SPSO split these complaints into “service complaints” which are about administrative issues like delay and “outcome complaints” which is where someone disagrees with their decision. I have attached a copy of the SPSO reporting of the number of Administrative “Service Complaints” the SPSO received up to the 2nd May 2007. It can be observed that they only provide numbers submitted and outcomes. This document also claims that these are not complaints about our decisions. This statement is not true because the SPSO does not accept, investigate, or report any complaints about their decisions as they classify them as “outcome complaints”. The SPSO would like the public and RSSB committee to think that no one complains about their decisions.

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RSSB/S3/09/4/11

Agenda item 2 The SPSO were forced to admit on the 3rd September 2008 (attached) that they received 334 complaints about their decisions in the period 2003 to 2007 and that none of these complaints have been reported quote “statistical information relating to “comebacks” (or equivalent) is not available elsewhere”. This is contrary to what Professor Borwn has written to the RSSB committee where she clearly states that that people may have valid grounds for complaining about our service and such concerns should be investigated, answered and learned from and that a scheme has been introduced to allow dissatisfied member of the public to pursue service complaints about the SPSO and that these are reported and published on their web site. Why would Professor Brown submit such a misleading statement to the RSSB committee? This is one area which the RSSB committee may wish to pursue further with Professor Brown. I would like to bring to the attention of the RSSB committee that a lot of this issues I have raised about the SPSO have also been raised by Murdo Fraser MSP. Murdo Fraser MSP is a man of integrity and independence who’s views of the way the SPSO operates is very critical. In Murdo Fraser’s submission to the RSSB committee he says 1. I have concerns that the SPSO office does not in all cases satisfactorily fulfil its duties. 2. There seems to be several similar criticisms that my constituents have noted regarding their case. These can be summarised as follows: a.The length of time taken to decide whether or not to take the complaint to an investigation. b. The length of time taken to undertake the investigation c. The quality of the investigation d. The quality of the final report e. The lack of dialogue and opportunity to change the draft report once it has been completed; and f. The way that the complaint was generally handled by the SPSO office These underlying problems of the SPSO office in relation to a complainant’s case must be resolved in order to have an effective Ombudsman’s office. 3. Another issue is lack of accountability. I believe that there should be a more systematic way of ensuring that the Ombudsman is held to account more regularly by the Parliament. I understand that the SPSO has to be independent of Parliament. However, apart from judicial review, there is no way for a complainant to call into account the work of the SPSO. Stronger accountability is required so that MSPs can question any reports that constituents have concerns with and can also question the conduct of the office. Murdo Fraser MSP also supported Mr Whittet’s petition PE1076 by providing the introductory statement when it was first presented to the Public Pettions Committee and as I have said Mr Whitte’s view of the SPSO was Irrefutable evidence was provided to the SPSO, but it was ignored and a flawed and misleading report subsequently produced and published. I have never read such a biased report. I consider the dismissal of my complaints wholly unjust and mockery of the principles of justice.

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RSSB/S3/09/4/11

Agenda item 2 Maladministration did occur, including maladministration on the behalf of the Ombudsman and her staff. I have never encountered such incompetence, maladministration and dismissive treatment as that perpetrated by the Scottish Public Services Ombudsman. Surely the service provided by the SPSO would not illicit such strong condemnation from Murdo Fraser MSP and Mr Whittet, a retired Senior Police Officer, if there was not something seriously wrong with the way the SPSO operates. Professor Brown claims my campaign against the SPSO is rooted in a determination to see the original decision on my complaint overturned. This is not actually true as I have resolved all the issues with the Council and my neighbour without the help of the SPSO. No the reason I have and will continue to campaign for a more accountable and effective Ombudsman is purely due to the completely unjust way I was treated by the SPSO and my disgust at the way the SPSO claim to be there to provide a service to the public when my experience has been the complete opposite, where the SPSO have done everything in their power to protect the authorities from valid and irrefutable complaints of maladministration. As I have stated above, I have resolved all issues surrounding my original grievance, and I now campaign purely out of civic duty to ensure that in the future the SPSO is prevented from treating other members of the public in the same way as they treated me.

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Updated 2 May 2007

Complaints received about our service – yearly totals Please find below a table of yearly totals of complaints about our service. They have increased in line with increases in the volume of work that has come to the SPSO year on year. These are not complaints about our decisions, but about the service provided by our staff. The majority of complaints are about administrative issues such as delay. Year Total Cases Upheld / partly upheld Not upheld Discontinued On hold Ongoing 2003/04 13 3 8 2 2004/05 13 2 8 3 2005/06 31 14 16 1 2006/07 42 20 19 1 2

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